Thread by @gavinsblog

Just heard of a High Court judgment that relies at least partly on the Court of Appeal in Enet. The FOI Act 2014 - in its purpose and goal - is now in very serious jeopardy.

if you're a journalist in particular, these two judgments taken together now fundamentally alter the nature of the Act. It is now becoming clear that it will no longer be useful to file FOI requests at all.

And every contentious story that the public has ever consumed that came from FOI over the past 20 years, may not have happened at all, if the logic of the Court of Appeal in Enet is applied in future

Reading the judgment now. And HOLY SHIT.

My head is melting. This is the first application of the judgment in Enet. It is arguably making obiter comments made by Macken in Rotunda into not-obiter comments. A valiant effort by Francis Kieran BL there..

The Information Commissioner's path is clear. He MUST appeal to the Supreme Court. So many matters of enormous public interest are being raised in both Enet and UCC v Information Commissioner & RTE. The FOI Act is, as of now, fatally undermined.

Not enough facepalm emojis dot gif

This is it folks, in black and white. Presumption is no longer in favour of disclosure. These words will send a chill down the spine of every journalist I know. The Act is now - and I use this word carefully - dead. We had a good run though: 1997 - 2019.

Here is the judgment in full thestory.ie/2019/04/03/jud…

The only option at this juncture is that the judgment in Enet is examined by the Supreme Court. In UCC, the Information Commissioner argued that if UCC were correct, the Commissioner's role would be "reduced to a rubber-stamping exercise". The judge found that UCC was correct.

And so this is where we are. The Information Commissioner's role has I would argue been reduced to that of rubber-stamping the decisions of public bodies. Public body says "we won't release": OIC says: "ok, no worries!"

And for the legal nerds, there's the curious case of how Macken in Rotunda has crept into all this.

In Rotunda, (at issue was personal information under the 1997 Act). Macken said, and note my highlight: "wholly obiter, and must be considered from such perspective."

In our High Court appeal, this issue was raised by the Minister. Judge Noonan, in his decision, explored this.

Noonan: The OIC and Mr Sheridan argued that Macken was commenting obiter.

We argued that all information was prima facie disclosable. Macken was making obiter remarks. She said they were "wholly obiter."

Judge Noonan concluded: What Macken was saying was obiter. She said it was. Fennelly's remarks were not obiter.

Then we got to the Court of Appeal. Judge Birmingham said the remarks were obiter, but maybe were not. He says that if there was a divergence between Fennelly and Macken that Murray and Hardiman would not have agreed with her judgment, including her obiter comments...

And because they agreed with her... it must mean they agreed with her obiter comments.

So what happened today in UCC? The High Court took the Court of Appeal interpretation of Macken's Supreme Court obiter comments, and applied it. The presumption in favour of release has been fatally undermined.

The Supreme Court will need to clarify a whole range of issues, including what Macken meant and how her obiter comments are meant to be interpreted.

(Most screengrabs via the very excellent @vizlegal application for searching and tracking things like judgments) ;-)

I need a stiff drink.

Also: Access to information is a fundamental right. These judgments raise questions under the Irish Constitution, the European Convention on Human Rights and the Treaties of the EU. This affects every citizen's rights, not just those of journalists (as heaviest users of FOI)

Also: worthing noting this UCC case came about as a result of an RTE Investigations Unit investigation into university spending and corporate governance issues at Irish universities. @conor_w_ryan was the reporter for that RTE report.

The TV report dealt with several issues, and as a result of the RTE investigation the Comptroller and Auditor General investigated UL. See here: rte.ie/news/investiga…

So if you think these issues aren't "real" or "live", they very much are. How the public is made aware of things like how public bodies spend public money is now in my view fatally undermined.

It is well worth re-watching that investigation by #rteinvestigates below. My case in Enet and RTE's case in UCC are broadly similar. UCC has relied on the Enet decision to reach their conclusion. You can only hope the OIC appeals Enet to the Supreme Court rte.ie/news/primetime…