Jim Kennedy and Jackson Way lose appeal over refusal of information

Jim Kennedy and Jackson Way lose appeal over refusal of information
Jim Kennedy

Businessman Jim Kennedy and his company Jackson Way Properties (JWP) have lost a High Court challenge to a refusal to provide information about land in Carrickmines, south Dublin, which has been the subject of years of litigation.

Ms Justice Niamh Hyland dismissed an appeal by JWP and Mr Kennedy against a January 2019 decision of the Information Commissioner to back Dun Laoghaire Rathdown Co Council's refusal of information it holds.

In February 2017, Mr Kennedy and JWP made a Freedom of Information (FOI) request to the council for copies of all records it held relating to JWP, its property, any burdens affecting title and any claims for compensation alleged to affect its land.

They also sought documents on JWP's own claim for compensation against the council relating to the Carrickmines land which was compulsorily acquired for the M50. JWP was awarded €12.8m compensation for the loss of the land but later had to bring proceedings against the council seeking enforcement of the award.

'Historic agreement'

That was complicated when landowners adjoining the JWP property claimed they were entitled to part of the €12.8m because they enjoyed the benefit of a historic agreement on both properties restricting building. JWP challenged that claim and won its case in which a judge found no such restriction existed.

There was also a separate case taken by the Criminal Assets Bureau seeking the payment from Mr Kennedy of monies CAB claimed came from the alleged corrupt enrichment of Jackson Way following rezoning of the Carrickmines land. That case was eventually withdrawn in 2014.

The council had refused the FOI request on the basis the examination of both hard copy and electronic records, which had been identified in a scoping exercise, would cause substantial and unreasonable disruption and interference with its normal work.

The council said potentially relevant documents included 12 property management files, 38 road construction/design files, six water services files, two finance files and five different sets of files relating to legal proceedings. It would take 262 hours to examine them, including some 9,000 emails, it said.

The Commissioner disagreed and they appealed the decision to the High Court.

Mr Kennedy and JWP argued, among other things, the correct legal test was not applied in the Commissioner's decision and it was wrong in law. There had also been no assessment of the reasonableness of the alleged interference with council work, it was also claimed.

The Commissioner opposed the appeal and the council was a notice party.

Today, Ms Justice Hyland found there was an "ample evidential basis" for the Commissioner's decision. It was apparent from the decision (to refuse the information) that consideration was given to factors including the time involved, the number of records, the staff resources and how the council's functional areas would be affected.

The council put before the Commissioner sufficient material to justify the decision, she said. She upheld the Commissioner's decision.

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