Appeals to the High Court and Supreme Court
Notice No. 22
1. Appeals to the High Court
Appeals to the High Court are dealt with in section 42 of the Freedom of Information Act. Subsection (1) provides that
"(1) A party to a review under section 34 or any other person affected by the decision of the Commissioner following such a review may appeal to the High Court on a point of law from the decision"
This suggests that an appeal on a point of law may be made in the following circumstances:-
i) in relation to a case where a requester has made a request under the Act, where the public body's decision on that request has been appealed to the Information Commissioner, and where the Information Commissioner has overturned, varied or affirmed the public body's decision,
or
ii) in relation to a case where the Information Commissioner's decision will affect the public body concerned
or
iii) in relation to a case, where the outcome will affect any other person.
In other words, any person affected by an Information Commissioner decision has a right to appeal such a decision on a point of law. However, if the public body which might wish to lodge an appeal is neither the requester, nor the public body which received the request or if a third party wishes to lodge an appeal, the question arises as to how they are to know of the Information Commissioner's decision. Under section 34(10) of the Act, the Commissioner is required to notify of his decision only:
(a) the head concerned,
(b) the relevant person concerned [usually the requester], and
(c) any other person to whom, in the opinion of the Commissioner, such notice should be given.
It follows that any person or body, other than the public body directly involved in the case, who/which expects to be affected by an Information Commissioner decision, should ask to be informed of the decision concerned, either by the other public body involved or by the Information Commissioner.
The best point at which to address an actual or potential disagreement on a point of law between the Office of the Information Commissioner and a public body is before the Information Commissioner has made a final decision in a particular case. In most cases where difficult legal issues arise, the Office of the Information Commissioner is likely to engage in discussions and/or seek submissions with/from both parties concerned. If the Office of the Information Commissioner is raising legal issues which would be likely to give rise to real difficulty for the public body concerned, or for public bodies generally, then a strong, well-considered submission to the Office of the Information Commissioner, at this stage, might avert the need for an appeal later. The Act generally applies a burden of proof to the public body, so an indication from the Office of the Information Commissioner that it is considering a particular line in relation to a legal issue arising should be viewed as an opportunity to meet this burden of proof.
Where the Information Commissioner makes a decision which the public body wishes to appeal, the appeal must be lodged within eight weeks. This means that the following steps require to be taken, within that eight week time frame – early action is essential:
1. Consideration of whether an appeal is appropriate – appeals should not be taken merely because the public body disagrees with the finding. The finding should be appealed only if there are important negative implications arising from it, either in relation to the particular records concerned, or in relation to the impact in public bodies more generally of wider application of some principle set out in the finding. Public bodies are advised to notify the Central Policy Unit where an issue of general principle in relation to the FOI Act is considered to be at stake.
2. Seek legal assistance – it is essential that legal advice be sought as early as possible in the process. In the case of Government Departments, this advice should be sought through the Office of the Attorney General, who will arrange outside counsel and advise the Office of the Chief State Solicitor as appropriate. Other public bodies or affected parties should enter into discussions with their usual legal advisors.
3. Reconsider the question of appeal in the light of the advice received
4. Ensure the appeal is lodged – it is not intended to go into this procedure in detail here. This is a matter for the legal advisors concerned to advise on. The principal requirements are set out in the relevant rules of court (S.I. No 325 of 1998 as amended by S.I. 471 of 2004 – see appendix I). It is not necessary, at this stage, that the whole case should be prepared, but the appellant will be required to make an affidavit and do the following:
a) state the nature of the decision against which the appeal is brought;
(b) exhibit a copy of the decision, if any;
(c) state the grounds of the appeal and the point of law, where appropriate;
(d) state the nature of the discretion or order sought from the Court;
(e) exhibit all relevant documentation; and
(f) specify whether the appellant is requesting that the appeal be heard otherwise than in public
Of course, an appeal should not be lodged unless there is a reasonable prospect of success.
5. Pursue the case in accordance with legal advice received – again, the wider picture should always be borne in mind. It might be possible to make legal arguments which would, if accepted by the Court, assist in the present case, but set undesirable legal precedents in relation to other cases which might arise.
6. Consider whether some of the records concerned can be released in the interim – where a legal point arises in relation to only some of the records which were the subject of the Information Commissioner's original decision, consideration should be given to release of those records which are not in contention, subject always to legal advice.
Issues of Fact are not subject to appeal – where the Information Commissioner is considered by a public body to have erred in making a decision, on the basis of a misinterpretation of the facts surrounding a case, this is not subject to appeal to the High Court. Only points of law are subject to such appeal. In practice however, issues of fact and law may be heavily intertwined.
A public body may not appeal a decision where the Information Commissioner has ruled in its favour – it could arise that, while a decision of the Information Commissioner is entirely in favour of the public body concerned, some aspect of the way in which the Information Commissioner arrives at the decision is regarded as undesirable by the public body concerned. However, in such a case, there would be no right of appeal.
It may be important to ensure that the process of taking an appeal to the High Court does not give rise, in itself, to the outcome which it is desired to avoid – i.e. release or publication of records which should properly be exempt from release: section 43 of the Act requires the High Court to take measures to guard against this outcome, and the relevant rules of Court provide a party to an appeal may request that the Court take precautions to prevent disclosure to the public or, if appropriate, to a party, of information which should properly be withheld, and that the Court shall take all such reasonable precautions as it thinks fit. A practical example of where the High Court went to great lengths to keep the appropriate records confidential can be seen in the judgment of Justice Carroll in the case of the Minister for Justice v the Information Commissioner 2003.
2. Appeals to the Supreme Court:
Since the enactment of the Freedom of Information (Amendment Act) in April 2003, a decision of the High Court under section 42 of the FOI Act may be appealed to the Supreme Court. An appeal to the Supreme Court may be considered appropriate if a judgement of the High Court causes a particular difficulty for the public body or for public bodies in general. The Central Policy Unit should be consulted in such a case.
The requirements in relation to Supreme Court appeals are set out in S.I. No. 15 of 1986 (Appendix 2). Public bodies considering an appeal to the Supreme Court are advised to familiarise themselves with the relevant requirements, including the timescales that apply.
In view of the tight time frame for preparing an appeal to the Supreme Court, immediate action is essential. As in the case of High Court appeals, public bodies should firstly consider whether an appeal is appropriate and should carefully consider, in conjunction with their legal advisors, the likely chances of sucess. The Supreme Court is the final Court of appeal and it is important that the wider picture should always be borne in mind as regards the setting of undesirable legal precedents in relation to other cases that might arise.
Central Policy Unit
12 January 2005.
Appendix 1
Text of "Rules of the Superior Courts (No. 3) (Freedom of Information Act, 1997), 1998" (S.I. No. 325 of 1998) as amended by "The Rules of the Superior Courts (Order 130 (Amendment) Rules), 2004" (S.I. No. 471 of 2004)
| RULES OF THE SUPERIOR COURTS (No. 3) (FREEDOM OF
INFORMATION ACT, 1997), 1998 1. The following Order shall be inserted as Order 130 of the Rules of the Superior Courts: " Order 130 Freedom of Information Act, 1997 1. In this Order: "the Act" means the Freedom of Information Act, 1997; 2. An appeal to the Court pursuant to section 42(1), section 42(2) or section 42(3) of the Act as amended by the Act of 2003 shall be brought by way of originating notice of motion. 3. The notice of motion shall be issued within eight weeks after notice of the decision concerned is given to the person bringing the appeal. The notice of motion shall be served upon the Commissioner and upon any other person affected by the decision the subject matter of the appeal. Service shall be effected by ordinary pre-paid post. 4. The notice of motion shall be entitled "In the matter of the Freedom of Information Acts, 1997 and 2003" and on the application of the appellant. 5. Every notice of motion bringing an appeal shall be grounded upon the affidavit of the appellant which shall: (a) state the nature of the decision against which the appeal is brought; (b) exhibit a copy of the decision, if any; (c) state the grounds of the appeal and the point of law, where appropriate; (d) state the nature of the discretion or order sought from the Court; (e) exhibit all relevant documentation; and (f) specify whether the appellant is requesting that the appeal be heard otherwise than in public. 6. An appeal brought pursuant to section 42(1), (2) or (3) of the Act as amended by the Act of 2003 shall be heard and determined upon affidavit unless the Court otherwise directs, and the Court may give such directions as to the giving of oral evidence as appear appropriate in the circumstances. 7. Any question of law referred to the Court by the Commissioner pursuant to section 42(5) of the Act as amended by the Act of 2003 shall be brought by way of a case stated entitled "In the matter of the Freedom of Information Acts, 1997 and 2003 and on the reference of the Commissioner under section 42(5) of the Act of 1997". The case stated shall be signed by or on behalf of the Commissioner and shall be served on all parties to the review under section 34 of the Act as amended by the Act of 2003. 8. The said case stated shall contain a statement of the facts found by the Commissioner insofar as they are relevant to the reference to the Court and shall state concisely the question of law referred for determination by the Court. The case stated shall have annexed to it: (a) the written decision, if any, in respect of which the review pursuant to section 34 of the Act as amended by the Act of 2003 was sought; (b) the application for a review pursuant to section 34 of the Act as amended by the Act of 2003 where such application was in writing; (c) all other relevant documentation. 9. Any party to an appeal under section 42(1), (2) or (3) of the Act as amended by the Act of 2003 or to a reference under section 42(5) of the Act as amended by the Act of 2003 may, either by affidavit or by letter in writing or at the hearing, request that the Court take precautions to prevent disclosure to the public or, if appropriate, to a party, of information referred to at section 43(1)(a) and (b) of the said Act as so amended. The Court shall take all such reasonable precautions as it thinks fit for the purposes of section 43 of the Act as so amended whether or not any such precautions have been requested by the parties or any of them. " 2. This rule shall come into operation on the 21st day of September, 1998. 3. This rule shall be construed together with the Rules of the Superior Courts, 1986 to 2004 and may be cited as the Rules of the Superior Courts (No. 3) (Freedom of Information Act, 1997), 1998. EXPLANATORY NOTE (This note is not part of the Instrument and does not purport to be a legal interpretation). These Rules come into operation on the 21st day of September, 1998 and make provision in regard to applications and appeals to take High Court under the Freedom of Information Act, 1997. Document last modified on: 16/12/04 |
APPENDIX 2
ORDER 58. APPEALS TO THE SUPREME COURT.
1. All appeals to the Supreme Court shall be by way of rehearing and (save from the refusal of an ex parte application) shall be brought by notice of motion (in this Order called "the notice of appeal"). The appellant may appeal from the whole or any part of any judgment or order and the notice of appeal shall state whether the whole or part only of such judgment or order is complained of and, in the latter case, shall specify such part.
2. In any cause or matter where there has been a trial thereof, or of any issue therein, with a jury every notice of appeal therein shall include an application for a new trial and such other relief as may be sought, e.g. to set aside the verdict and finding of a jury or to enter judgment for the appellant.
3. (1) The notice of appeal shall in every case be a ten-day notice and subject to the provisions of this Order, shall be served not later than twenty-one days from the passing and perfecting of the judgment or order appealed against.
(2) The date of passing and perfecting shall be indorsed on the judgment or order by the proper officer of the Court in which the judgment or order was pronounced or made.
(3) The Supreme Court shall have power to abridge the time appointed by these Rules for notice of an appeal to the Supreme Court upon terms (if any) as it may direct.
(4) The Supreme Court shall have power to enlarge the time appointed by these Rules or fixed by any order enlarging time for the service of a notice of appeal to the Supreme Court upon such terms (if any) as it may direct, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.
4. The notice of appeal shall in every case state the grounds of appeal and the relief sought or the order (if any) in lieu of the judgment or order appealed from sought by the appellant and when there has been a trial with a jury whether all or part only of the verdict or findings is complained of.
5. The notice of appeal shall be served upon all parties directly affected by the appeal, and it shall not be necessary to serve parties not so affected; but the Supreme Court may direct notice of the appeal to be served on all or any of the parties to the action or other proceeding, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties.
6. Any notice of appeal may be amended at any time on such terms as the Supreme Court may think fit.
7. In any appeal within rule 2, the following provisions in addition to such of the provisions of this Order as are applicable, shall apply:—
(1) The Registrar of the Supreme Court shall apply to the trial Judge for a report, so far as he may deem necessary, of the trial for the information of the Supreme Court.
(2) A new trial shall not be granted on the ground of mis-direction or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the Judge at the trial was not asked to leave to them, unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appear to such Court that such wrong or miscarriage affects part only of the matter in controversy, or some or one only of the parties, the Supreme Court may give final judgment as to part thereof, or as to some or one only of the parties, and may direct a new trial as to the other part only, or as to the other party or parties.
(3) A new trial may be ordered on any question, whatever be the grounds for the new trial, without interfering with the finding or decision upon any other question.
8. The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme Court (obtained upon application therefor by motion on notice setting forth such special grounds). The Supreme Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to make such further or other order as the case may require. The powers aforesaid may be exercised by the Supreme Court, notwithstanding that the notice of appeal asks that part only of the decision be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Supreme Court shall have power to make such order as to the whole or any part of the costs of the appeal as may be just.
9. If upon the hearing of an appeal, it shall appear to the Supreme Court that a new trial ought to be had, it may order that the judgment or order be set aside and that a new trial be had.
10. It shall not, under any circumstances, be necessary for a person served with notice of appeal to give notice by way of cross appeal, but if such person intends, upon the hearing of the appeal, to contend that the judgment or order appealed from should be varied, he shall within four days of such service upon him or within such extended time as may be allowed by the Supreme Court give notice of such intention to any parties who may be affected by such contention. Every such notice shall be a four-day notice and the appeal shall not be listed before the expiration thereof. The omission to give such notice shall not diminish the powers conferred by statute or these Rules upon the Supreme Court, but may, in the discretion of the Supreme Court, be ground for an adjournment of the appeal or for a special order as to costs.
11. All appeals to the Supreme Court shall be entered in the Office of the Registrar of the Supreme Court within seven days of service, or of the last service, if more than one, of the notice of appeal. The appellant shall lodge with the Registrar of the Supreme Court an attested copy of the judgment or order appealed from and shall leave with him a copy of the notice of appeal (indorsed with sufficient particulars of service) to be filed and as soon as the necessary papers are in order and ready such officer shall thereupon set down the appeal by entering the same in the proper list of appeals and it shall come on to be heard according to its order in such list, unless the Supreme Court shall otherwise direct.
12. The appellant shall without delay lodge in the Office of the Registrar of the Supreme Court five books of appeal each containing copies of the pleadings and all other documents required for the hearing of the appeal with a sufficient index, a true copy of which index shall have been previously furnished to every other party affected by the appeal; provided that in any appeal within rule 2 three books of appeal shall be lodged initially, unless the Court shall otherwise require.
13. Where an ex parte application has been refused in whole or in part by the High Court an application for a similar purpose may be made to the Supreme Court ex parte within four days from the date of such refusal, or within such enlarged time as the Supreme Court may allow.
14. When any question of fact is involved in an appeal, the evidence taken in the High Court bearing on such question shall, subject to any special order, be brought before the Supreme Court as follows:—
( a ) as to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and copies of such of them as have not been printed;
( b ) as to any evidence given orally, by the production of a copy of the Judge's notes, or such other materials as the Supreme Court may deem expedient.
15. If, upon the hearing of an appeal, a question arises as to the ruling or direction of a Judge to a jury or assessors, the Supreme Court shall have regard to verified notes or other evidence, and to such other materials as the Supreme Court may deem expedient.
16. No interlocutory order or rule from which there has been no appeal shall operate so as to bar or prejudice the Supreme Court from giving such decision upon the appeal as may be just.
17. Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Supreme Court.
18. An appeal to the Supreme Court shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the High Court or the Supreme Court may order; and no intermediate act or proceeding shall be thereby invalidated, except so far as the High Court or the Supreme Court may direct.
19. Whenever under these Rules an application may be made either to the High Court or to the Supreme Court it shall be made in the first instance to the High Court.
20. On an appeal from the High Court, interest for such time as execution has been delayed by the appeal shall be allowed, unless the Supreme Court otherwise orders, and the Taxing Master or other proper officer may compute such interest without any order for that purpose.
21. This Order shall, so far as applicable, apply to all appeals to the Supreme Court from any special tribunal or body.
22. Where a defendant desires to contest as respondent, in pursuance of the Civil Liability Act, 1961, section 32 (3), an appeal brought by a co-defendant, he shall serve notice of his intention to do so in the Form No. 30 in Appendix C upon such co-defendant and the plaintiff, and upon any other party directly affected thereby, within seven days from the date on which the notice of appeal was served upon him, or within such extended time as may be allowed by the Supreme Court, and shall lodge a copy of the notice of intention to contest the appeal with the Registrar of the Supreme Court at latest upon the day after the last service of such notice.
23. (1) The following provisions shall apply to appeals to the Supreme Court on questions of law under the Electoral Act, 1963, and the Local Government (Petitions and Disqualifications) Act, 1974.
(2) Every such appeal shall be by notice of appeal in accordance with rule 1; and such notice of appeal shall be served within twenty-one days from the date on which the judgment or order appealed from was pronounced in open Court and shall be lodged with the Registrar of the Supreme Court forthwith.
(3) It shall be the duty of the Registrar of the Supreme Court to apply to the County Registrar or other proper officer for a signed copy of the note made by the Circuit Judge of any question of law raised before him and of the facts in evidence in relation thereto, and of his decision thereon and on the question or matter submitted to him. Such copy shall be supplied for the use of the Supreme Court and shall be used and received at the hearing of the appeal. The Registrar of the Supreme Court shall further apply to such County Registrar or other proper officer for the transmission to him for the use of the Supreme Court of a file of all documents and papers relating to the case. If such note as aforesaid cannot be produced, the Supreme Court shall have power to hear and determine the appeal upon any other evidence or statement of what occurred before the Circuit Court judges which the Supreme Court may deem sufficient.
(4) Subject to the provisions of this rule, this Order shall, so far as practicable, apply to appeals under the said Acts.
(5) The Registrar of the Supreme Court shall give notice to the appropriate registration authority of the order made by the Supreme Court finally determining any appeal in the Form No. 7 or No. 8, as the case may be, in Appendix V.
