New Appeal: Kelly v The Information Commissioner, re right to appeal discontinuance of review to High Court

In this determination (here) the Court granted Kelly leave to appeal from a decision of the Court of Appeal regarding the interpretation of s 42(1) of the Freedom of Information Act 1997, as replaced by s 24(1) of the Freedom of Information Act 2014.

Background

Kelly has been involved in an ongoing dispute with University College Dublin since 2001, when it refused his application for a Social Science course. These proceedings relate to UCD’s refusal to provide him with certain records under a Freedom of Information request. Kelly made an application to the Commissioner to review that decision. The Commissioner began a review but discontinued it on grounds that it was vexatious. Kelly appealed the Commissioner’s decision to discontinue his review to the High Court under s 42(1) of the Freedom of Information Act 1997, which states:

A party to a review under s. 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.

In the High Court, the Commissioner argued that Kelly had no right to bring an appeal to the High Court as no review had taken place–it was discontinued. The High Court accepted that argument; as did the Court of Appeal (here).

Kelly applied for leave to appeal to the Supreme Court.

The Supreme Court determined that the interpretation of s 42(1) of the 1997 Act, as replaced by the 2014 Act, would affect other parties and that it was an issue of general public importance to allow an appeal limited to the issues:

i. Did an appeal lie to the High Court under s. 42(1) of the Freedom of Information Act 1997 in respect of the decision of the Commissioner made on the 11th September, 2013 to discontinue the review pursuant to s. 34(9)(a)(i)?”; and

ii. Does a similar issue arise under the Freedom of Information Act, 2014?

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