A Dublin school principal has won by a 2/1 majority his appeal against a decision of the Information Commissioner to release certain school inspectors' reports to The Irish Times.
In the first appeal under the Freedom of Information Act (FOI) to come before the Supreme Court, the court declared that releasing the information in the reports could lead to comparisons being drawn between schools.
The court yesterday granted the appeal by Barney Sheedy, principal of Scoil Choilm, Crumlin, against the High Court's refusal to overturn the commissioner's decision to release the reports.
'In the majority Supreme Court judgment, Mr Justice Nicholas Kearns, with whom Ms Justice Susan Denham agreed, allowed the appeal on one of three grounds advanced by Mr Sheedy.
The successful ground of appeal related to Section 53 of the Education Act, 1998, which provides that the Minister for Education "notwithstanding any other enactment, may refuse access to any information which would enable the compilation of information (that is not otherwise available to the general public) in relation to the comparative performance of schools in respect of the academic achievements of students".
The court found the use of the clause "notwithstanding any other enactment" was clear and meant Section 53 overrode any provision of the FOI Act, 1997.
Mr Justice Kearns said the section may well have been inserted with the unspoken intention of "batting off" the application of the FOI Act to the historically contentious issue of making public certain findings regarding the comparative performance of schools.
In his dissenting judgment dismissing the appeal on all grounds, Mr Justice Nial Fennelly said he did not believe the Oireachtas could have intended that Section 53 in some manner made the provisions of the FOI Act not applicable.
He said the FOI Act constituted a "legislative development of major importance" by which the Oireachtas took a considered and deliberate step which "dramatically alters the administrative assumptions and culture of centuries". The judge said the Act "replaces the culture of secrecy with one of openness", was "designed to open up the workings of government and administration to scrutiny" and not simply to satisfy the appetite of the media for stories.
He said the Act was intended to have universal application, meaning it extended to every class or record held by any public body listed in the first schedules to the Act. It also, within its own terms, recognised there could be legislative provisions (past or future) either prohibiting disclosure or permitting non-disclosure on a discretionary basis.
He believed the more reasonable intention to attribute to the Oireachtas was that requests for access to information of the kind mentioned in Section 53 could be made but that such requests were to be determined under the machinery set out in the 1997 Act. Section 53 did not set out any procedure or criteria at all for determining such requests.
The legal proceedings arose after The Irish Times applied to the Department of Education for access to reports of inspections of a number of Dublin primary schools. The department refused access under Section 53 of the Education Act, 1998, and sections of the FOI Act, 1997.
The refusal under the 1997 Act was on grounds that school staff provided information in confidence to the inspectors and disclosure could prejudice the effectiveness of future inspections.
The Irish Times appealed the department's refusal to the Information Commissioner. In March 2003, the commissioner allowed the appeal and directed that the newspaper could have access, with the exception of references to the principal and staff, to the inspectors' reports on five schools, including Scoil Choilm.
Mr Sheedy's proceedings challenging that decision were against the Information Commissioner, with the Minister for Education and Science and the Irish Times Ltd as notice parties.
Mr Sheedy had claimed the release of the reports could lead to the compilation of "league tables" of schools and would have a "chilling" effect on teachers' interaction with inspectors.
However, in rejecting Mr Sheedy's case in the High Court, Mr Justice Gilligan found Mr Sheedy had failed to demonstrate that granting access to the report would enable the compilation of information on the comparative performance of schools.
