Case 99021. Request for access to affidavits filed in a High Court case - whether such records are held by the courts and relate to proceedings in a court; whether disclosure of the record to the general public was not prohibited by the court - section 46(1)(a)(i)

Case Summary

Facts

The requester sought access to a number of affidavits filed in a High Court case. (At the time of the request, the Courts Service had not been created and the correct way, at the time, to seek access under the FOI Act to records held by the Courts was via the Department.) The Department refused the request on the grounds that section 46(1)(a)(i) applied to them.

Section 46(1)(a)(i) provides that, subject to two exceptions, the FOI Act does not apply to a record held by the courts and relating to proceedings in a court. The only exception relevant to the review was that providing that the FOI Act does apply to such a record where the following three conditions are met:

• the record relates to proceedings in a court held in public, and
• the record was not created by the court, and
• the disclosure of the record to the general public is not prohibited by the court.

The Commissioner accepted that all the records at issue related to proceedings in a court held in public and that the records were not created by the court, but by the parties to the court proceedings. However the Department argued that the third requirement was not met because it said the disclosure of these records to the general public is prohibited by the court.

The Commissioner accepted the Department's evidence that there was a practice of restricting access to documents on court files to the solicitors representing the parties to the proceedings or to other persons who have obtained the consent of those solicitors. The Department also referred the Commissioner to section 65(3) of the Court Officers Act, 1926, which provides the legislative basis for restricted access to court files. He did not accept the requester's arguments that the fact that the affidavits were read out in open court and were subsequently reported on in the media as evidence that the court did not have a practice of restricting access to the documents.

The Commissioner referred to the comments of Finnegan, J. in his judgement on an appeal to the High Court by the Minister for Justice, Equality and Law Reform and the Courts Service on a decision by the Commissioner in Case No. 99003 in reference to records held by the court. Finnegan, J. said that such records were subject to section 65 of the Court Officers Act 1926, which he took as creating a general prohibition on the disposal of documents but from which the Judge can dispense. Finnegan, J. went on to say that "...unless there is such a dispensation there is a prohibition in place within the meaning of Section 46(1)(a)(i)(I) and the record is not within the exception." (The full text of the High Court judgement in question can be viewed by following this link [file: 22ca_492.htm])

The Commissioner was satisfied that disclosure of the affidavits at issue in this case was prohibited by the court either because of a long-standing practice which amounted to a prohibition or because the effect of section 65 of the Court Officers Act, 1926 was to create such a prohibition. He was satisfied that the affidavits were exempt by virtue of section 46(1)(a)(i) of the Act and the Department was entitled to refuse access to them.

Date of Decision: 17.05.2001

Our Reference: 99021

17.05.2001

Mr. X

Dear Mr. X

I refer to your application for a review by me of the decision of the Department of Justice, Equality and Law Reform ("the Department") on your request under the Freedom of Information Act, 1997 ( "the FOI Act" ) for access to affidavits filed in the High Court case of the Competition Authority v Irish Road Haulage Association and others, 1998.

Background

There were three parts to your original request for information but your application to this Office is in relation to the affidavits filed in the High Court case referred to above. In its decision, the Department refused you access to the affidavits in question on the grounds that "these affidavits are documents held by the Courts" and that section 46(1)(a)(i) of the FOI Act applies. In carrying out my review, I have had regard to

• the correspondence between you and the Department on the matter;
• your submissions of 14 January 1999 and 5 May 1999 to this Office;
• the Department's submission of 7 April 1999;
• the High Court's judgement of 14 March 2001 ( a copy of which was sent to you by Ms O'Connor) in relation to an appeal against my decision in Case Number 99003 - Mr. ACD and the Department of Justice, Equality and Law Reform;
• your submission of 23 April 2001 in response to Ms. O'Connor's letter of 20 April 2001.

Scope of Review

In the course of the review, the Department made available to me copies of 14 affidavits which are held on the relevant court file and which the Department received from the Chief Registrar of the High Court, Mr J. C. Delahunty. The issue which I have to decide is whether or not the Department was correct in refusing you access to these affidavits.

Findings

As a preliminary point, I note that your request was addressed to the Department, rather than to the Chief Registrar of the High Court. At the time this was the correct way to seek access under the FOI Act to records held by the courts because, by virtue of paragraph 4 of the First Schedule to the FOI Act, any reference to the Department in the FOI Act is to be construed as including a reference to the courts. Accordingly, I have dealt with this review on the basis that the records which you seek are records held by the courts rather than by the Department. In the meantime, I note that the Courts Service has been established and came within the FOI Act in its own right on 1 March 2000, so that any future requests for records held by the courts should be addressed to that body.

The Department claims that the affidavits are exempt under section 46(1)(a)(i) of the Act. That section, in so far as it is relevant to the present review, provides as follows:

"46.-(1) This Act does not apply to-

(a) a record held by-

(i) the courts,

(ii) a tribunal to which the Tribunals of Inquiry (Evidence) Act, 1921, is applied, or

(iii) a service tribunal within the meaning of section 161 of the Defence Act, 1954,

and relating to, or to proceedings in, a court or such a tribunal other than-

(I) a record that relates to proceedings in a court or such a tribunal held in public but was not created by the court or tribunal and whose disclosure to the general public is not prohibited by the court or the tribunal...."

Put briefly, the section provides that the FOI Act does not apply to certain records held by the courts. However, it is clear that it does not exclude all records held by the courts from the application of the FOI Act. Two major exceptions are made of which only the first is relevant to this review viz. the FOI Act does apply to a record held by the courts and relating to proceedings in a court where the following three conditions are met:

• the record relates to proceedings in a court held in public, and
• the record was not created by the court, and
• the disclosure of the record to the general public is not prohibited by the court.

It is clear that all of the records at issue in this case relate to proceedings in a court viz. the proceedings in the case of the Competition Authority v the Irish Road Haulage Association & Others. It is also clear that the records were not created by the court, but by the parties to the relevant proceedings. However, the Department argues that the third requirement is not met because, it says, the disclosure of these records to the general public is prohibited by the court.

In support of this claim it stated that "in practice, unless the trial judge rules otherwise, access to court files is restricted to the solicitors on record representing the parties to the proceedings, or to any person who furnishes the consent of a solicitor representing either party to the proceedings". It also submitted that "the legislative basis for restricted access to Court files is contained in Section 65(3) of the Court Officers Act, 1926 which provides that all proofs and all other documents and papers lodged in or handed in to any court in relation to or in the course of the hearing of any suit or matter shall be held by or at the order and disposal of the judge or the senior of the judges by or before whom such suit or matter is heard".

I accept the Department's evidence that there is a practice of restricting access to documents on court files to the solicitors representing the parties to the proceedings or to other persons who have obtained the consent of those solicitors. This is notwithstanding your own claims, in your letter of 5 May 1999, that these affidavits were summarised in the media and that, in any event, if present in court you might have been able to take down every word of the affidavits as they were read out. I note that in my decision in Case Number 99003 ( a copy of which was sent to you by Ms Ivory on 8 November 2000) I pointed out that a similar situation arises in relation to a transcript of proceedings held in open court. Notwithstanding the apparent anomaly here, the High Court held subsequently on appeal against that decision that the disclosure of such a transcript is, indeed, prohibited by the court. In the circumstances, I do not accept that the fact that the affidavits were read out in open court or were subsequently reported in the media as evidence that the court does not have a practice of restricting access to these documents in the manner described above.

In my decision in case Number 99003 I found that such a practice of restricting access did not amount to a prohibition on the disclosure of records to the general public as required by section 46(1)(a)(i). However, on appeal the High Court did not accept this finding. His Honour Mr Justice Finnegan ruled that I was incorrect insofar as I ruled that section 46(1)(a)(i) is concerned with a specific prohibition imposed by the court which has dealt with or is dealing with the matter to which the record relates. He decided that the provision applies equally to the situation in which there is a general prohibition. By way of obiter, he remarked that, as the courts are entitled to regulate the conduct of court business, a practice of the courts would likewise amount to a prohibition and he gave as an example the practice of restricting access to Central Office files.

Later in his decision, and dealing with the question of access to the statement of the accused, Finnegan, J. decided that that statement was included in the Book of Evidence and was, therefore, exempt because it had been created by the Director of Public Prosecutions or his Office. However, he found in the alternative that :

" If the statement is not in fact included in the Book of Evidence but is nonetheless held by the court then it is subject to the Court Officers Act 1926 Section 65 and is at the disposal of the Judge. I take this section to create a general prohibition on the disposal of documents but from which the Judge can dispense: unless there is such a dispensation there is a prohibition in place within the meaning of Section 46(1)(a)(i)(I) and the record is not within the exception. "

It is clear that, in making this finding, Finnegan J. was referring only to records lodged in or handed in to any court in relation to or in the course of the hearing of any suit or matter. In my view this is a clear and unequivocal statement of the law which is of clear application in the present case. I have made no specific enquiry as to whether the judge in this case has dispensed with the general prohibition on disclosure which His Honour has found to exist and I do not consider it either necessary or desirable to do so.

In summary, I am satisfied that disclosure of the affidavits at issue in this case is prohibited by the court either because of a longstanding practice which amounts to a prohibition or because the effect of section 65 of the Court Officers Act, 1926 is to create such a prohibition. Accordingly, I am satisfied that the affidavits are exempt by virtue of section 46(1)(a)(i) of the Act and the Department is entitled to refuse access to them.

For the sake of completeness, I should add that of the 14 affidavits at issue only three were created after the commencement of the FOI Act. I note that public bodies are only required to grant access to records created prior to the commencement of the Act if access is necessary or expedient in order to understand records created after commencement (section 6(5)(a)) or if the records relate to personal information about the person seeking access to them (section 6(5)(b)). It is clear that none of the records at issue here relate to personal information about you. It is possible that access to some of the affidavits created before 21 April 1998 may be necessary or expedient in order to understand records created after the commencement of the Act. However, as I have already found that the FOI Act does not apply to any of the records, it seems to me that no useful purpose would be served by making specific findings on this matter in relation to the individual records.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby affirm the decision of the Department of Justice, Equality and Law Reform.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner