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In April 2017, the High Court delivered its decision in Minister for Communications, Energy and Natural Resources v The Information Commissioner [2017] IEHC 222. The case involved a Freedom of Information (FOI) request made to the Minister for access to a 2009 concession agreement between the Minister and telecommunications company, ENET. The agreement set out the terms of the concession awarded to ENET to maintain, manage and operate the metropolitan area networks of fibre optic cables.

The Minister refused access to the agreement on the basis that it contained information obtained in confidence and commercially sensitive information under sections 35 and 36 of the Freedom of Information Act 2014 (the FOI Act), respectively. This decision was then appealed to, and annulled by, the Information Commissioner. The Commissioner noted that the Minister’s decision to refuse the FOI request was presumed to be unjustified and that the onus was on the Minister to satisfy the Commissioner that the decision was justified. The Commissioner also found, among other things, that the Minister was required to show “exceptional circumstances” to justify the refusal to release commercially sensitive information. However, he had failed to do so.

The Minister appealed the Commissioner’s decision to the High Court. He argued that the Commissioner mistakenly applied the presumption under section 22(12)(b) of the FOI Act to records which are exempt under the Act. The Minister further argued that the application of an “exceptional circumstances” test by the Commissioner was unjustified.


Mr Justice Noonan dismissed the appeal. He confirmed that the Commissioner was correct to find that the concession agreement should be released under FOI. The Court’s decision included the following grounds:

(a) Presumption under section 22(12)(b) of the FOI Act

The Court held that the Commissioner had correctly presumed, under section 22(12)(b), that the decision by the Minister to refuse access to the agreement was not justified. In this regard, the Court found that the statutory presumption applies to all information in the possession of public and other bodies subject to the FOI Act.

(b) Test of “exceptional circumstances”

The Court also found that the test of “exceptional circumstances” applied by the Commissioner under section 36 of the FOI Act was just and cogent. The Court confirmed that the onus rested upon the Minister to show the existence of “exceptional circumstances” that would warrant the withholding of information. The Court found that the Minister had failed to establish that release of the agreement would disclose commercially sensitive information concerning ENET.


This case re-emphasises that all decisions to refuse FOI requests are statutorily presumed to be unjustified under the FOI Act, and clarifies that this presumption applies to all information in the possession of FOI bodies.

In this context, it further approves the application of an “exceptional circumstances” test in order to rely successfully on the exemption for commercially sensitive information under section 36(1). Therefore, when seeking to rely on section 36, FOI bodies should now show that there are “exceptional circumstances” warranting the withholding of information.

For more information on refusing FOI requests, please contact a member of our Freedom of Information team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

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