Case 100263

The Senior Investigator varied the decision of the Department and directed the release of the names (but not the home addresses) of those judges on whose behalf representations had been made prior to their appointment. The Senior Investigator found that, while the disclosure of the identities of the judges in question involved the release of personal information and would be exempt under section 28 of the FOI Act, the public interest served by the disclosure of this information outweighs the public interest in upholding the right to privacy of the judges concerned; on this basis he found that the section 28 exemption does not apply.

Case Summary

Whether the Department is justified in its decision to refuse access to representations received by the Minister for Justice and Equality (the Minister) in relation to judicial appointments during the period 1997 to 17 July 2010 on the basis that the records are exempt from release under section 28 of the FOI Act.

Date of Decision: 09.08.2011

Review Application to Information Commissioner - Case Number 100263 Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background:

On 17 July 2010 the applicant wrote to the Department seeking access to:

"All representations received by the minister in relation to judicial appointments. According to an answer to a PQ (30481/09) given by the minister last year, there have been 42 representations received by the Department between 1997 and 2009. I would like all copies of all representations made to date - July 2010."

On 3 August 2010 the Department informed the applicant that it was extending the statutory four week timescale, within which a decision must be given, by an additional five weeks; this was on the basis that it had to undertake consultations with third parties under section 29 of the FOI Act. In the event, section 29 was not engaged and the Department did not undertake consultations with the third parties. Nevertheless, its decision did not issue until 7 October 2010 which was seven weeks outside the statutory timescale and two weeks more than the extended timescale which it had allowed itself.

In its decision of 7 October 2010, the Department granted the request in part. The Department provided the applicant with a list of the public representatives who had made representations to the Minister for the period 21 April 1998 to July 2010. The list was broken down by reference to appointments to the District Court, the Circuit Court and the High Court and gave no more than the name of the representative making the representations. In the case of the Supreme Court, the list showed that no representations had been made during the period in question. The Department refused access to the records themselves, that is, to the actual letters to the Minister from the public representatives concerned. This refusal was justified by reference to section 28(1) of the FOI Act. The Department's decision made no reference to the public interest test provided for at section 28(5) of the FOI Act which, in certain circumstances, allows for the section 28 exemption to be set aside.

On 13 October 2010 the applicant sought an internal review of this decision. In his internal review application, the applicant drew the attention of the Department to the relevance in this case of the public interest test and argued that the records should be released in the public interest. In its internal review decision of 16 November 2010, the Department released edited copies of the records at issue. In the copies released, the Department redacted any material identifying the persons on whose behalf the representations were being made as well as any other personal information (such as addresses) relating to these persons. The Department justified this decision by reference to section 28(1) of the FOI Act. Again, the internal review decision made no reference to the relevance of the public interest test at section 28(5) of the FOI Act; this was despite the fact that the applicant had argued specifically that the records should be released in the public interest.

On 13 November 2010 the applicant wrote to this Office seeking a review of the Department's decision. The applicant argued that the records should be released in the public interest. In a subsequent letter to this Office, the applicant observed that "the public interest argument is especially strong in cases where the lawyers who lobbied TDs were appointed to the judiciary."

Subsequently, following contacts with this Office, the applicant agreed to confine his FOI request to representations concerning people who were subsequently appointed to the judiciary. According to the Department, six representations were received on behalf of people who were subsequently appointed to the judiciary during the relevant period. Of these six judges, one had died prior to the making of the applicant's request.

Conducted in accordance with section 34(2) of the FOI Act by Fintan Butler, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Conduct of this Review

Contrary to its initial statement to the applicant that it would have to consult with third parties under section 29 of the FOI Act, the Department did not seek the views of those on whose behalf representations had been made. In the course of this review, the Department agreed to establish the views of the judges concerned and to pass on these views to this Office. On 23 March 2011 the Department wrote to this Office to say that it had consulted with each of the judges and that it was passing on their "observations" on the matter. These observations were presented as a collective response on behalf of the judges. The only FOI Act exemption referred to in these observations was section 28(1) which protects personal information. The observations include references to matters such as judicial independence, security considerations and the possibility of misrepresentation in a context where judges are "precluded from engaging in any public discourse to explain his or her position in the matter". The observations refer also to the right to privacy and to the extent to which this right is protected in the Constitution and in the European Convention on Human Rights.

Subsequently, the investigator dealing with the case in this Office wrote to the five judges concerned to outline her preliminary view - which was that the identities of the judges should be disclosed in the public interest - and to invite any further submission any individual judge wished to make. In the event, one of the judges made a written submission and three of them set out their positions by telephone. The written submission was identical to that already made on the judges' behalf by the Department with the addition of some specific comments regarding security issues personal to that judge. The telephone submissions were to the effect that the judges concerned were opposed to the release of the records for the reasons already set out in the Department's letter of 23 March 2011.

In the case of the deceased judge, on 9 June 2011 this Office informed the deceased judge's spouse of the FOI request and of the investigator's preliminary view that the identity of the deceased judge - as a person in respect of whom representations had been made to the Minister - should be disclosed. The spouse in question was invited to make any submission he or she wished in response to the preliminary views of the investigator. While this approach may not have been strictly necessary - as the personal information in question is that of the deceased judge rather than of the spouse - it seemed appropriate to allow the spouse the opportunity to make a submission. In response to this approach, the spouse made telephone contact with this Office on two occasions and sent a written submission by email on 22 July 2011. The spouse opposed release of the identity of the deceased judge on several separate grounds which may be summarised as follows:

• that it is unfair to identify a judge who is now deceased and not in a position to "verify or defend [himself/herself] in what might flow from this";
• because "all Judicial appointments since the foundation of the state are Political appointments" it would be fairer if the FOI request "would encompass all the appointments of Judges to all the courts";
• the identity of the FOI requester is relevant in that the information in this case is "being sought by The Sunday Times, a Murdoch organisation, currently in the dock for its ethical (sic) gathering and dissemination of information";
• the spouse has not "had sufficient time to seek legal advise (sic)";
• the deceased judge had, prior to appointment, applied previously to the Judicial Appointments Board and had been recommended for appointment by that Board.

In concluding this review, I have taken full account of all the various submissions received as well as of the provisions of the FOI Act. It is not necessary for the purposes of this decision to deal with each individual issue raised by each of those making submissions. However, on the question of the spouse of the deceased judge claiming not to have had sufficient time to seek legal advice, it is relevant to point out: (1) that a period of two months has elapsed between this Office's notification of the review to the spouse and the issuing of this decision; (2) that the original deadline for receipt of a submission (30 June 2011) was extended; and (3) that the spouse did make a submission as well as having had a detailed telephone discussion with the Senior Investigator on 14 July 2011.

Scope of Review

The issue in this review is whether the Department is justified in refusing access to the withheld portions of the requested records on the basis of section 28(1) of the FOI Act. While the request was for records from 1997 onwards, the Department has dealt only with records created since the commencement of the FOI Act on 21 April 1998. The Department is correct in this and there is no necessity to consider this issue further.

Submissions

.

Findings

The Department's position is that the records, to the extent that they have not been released, are exempt from release by virtue of section 28(1) of the FOI Act which protects personal information. The Department has not claimed that any other exemption applies. Neither has the Department made any submission in relation to the application of the public interest test provided for at section 28(5) and which must be considered in every case in which the section 28(1) exemption is claimed to apply.

In the case of the various submissions made by the judges concerned, section 28(1) is the only exemption addressed specifically. As mentioned above, these submissions refer to considerations such as security, judicial independence and the Constitutional right to privacy but it appears that these considerations are being raised in the context of the public interest test rather than as issues engaging some other exemption other than section 28(1). For the avoidance of doubt, and on the basis that this is a de novo review, I can say that I have considered the possible application of other FOI Act exemptions and concluded that no other exemption applies.

Section 28 - Personal Information

Section 28(1) provides that:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information ...".

The records in this case contain the names and in certain cases the home addresses of  persons on whose behalf representations were made to the Minister by political representatives.

For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.  The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the forgoing definition, including "... (iii) information relating to the employment or employment history of the individual, . . . . . (x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual, . .  [and] (xii) the views or opinion of another person about the individual".

I am satisfied that the withheld information constitutes personal information as defined at section 2 of the FOI Act and that, subject to the provisions of section 28, it is exempt from release under the FOI Act. In the present context, the only provision within section 28 which needs to be considered is that contained at section 28(5) which provides:

"(5)  Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance

(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid, the head may, subject to section 29, grant the request."

There is nothing to suggest that release of the records would benefit the individuals whose personal information is included in the records. Thus, section 28(5)(b) does not apply. However, it is necessary to consider whether the request falls to be granted under section 28(5)(a).

To apply section 28(5)(a) it is necessary to identify the public interest served by the release of the particular records and weigh that public interest against the public interest in upholding the right to privacy of the persons whose personal information is sought by the requester. Unlike public interest tests provided for elsewhere in the FOI Act - for example, at section 26(3) and at section 27(3) - section 28(5)(a) does not involve a balancing exercise between the public interest served by release of the particular records and the public interest served by the refusal of those records. Several of the issues raised by the judges appear to constitute public interest arguments in favour of refusal of the records; to the extent that this is the case, and that they do not bear directly on the public interest in upholding the right to privacy,  these issues are not relevant to the exercise required under section 28(5)(a).

There is a well-established and long recognised public interest in ensuring transparency in all aspects of government business; this includes matters of public spending, of appointments to public offices and declarations of interest by those in public life whether as elected representatives or as public officials. This is reflected in the Ethics Acts 1995 - 2001, the Electoral Act 1997 (as amended) and in Part 15 of the Local Government Act 2001. It is reflected also in the FOI Act itself which, subject to certain restrictions, provides for a general regime of access to the records of public bodies. Transparency is also a key principle underlying much of the regulatory framework of the European Union.

Applying this general public interest in transparency to the records at issue here, it is clear that the public interest is served where the process of judicial appointments is made as transparent as possible. It is not just the fact that judges are paid from public funds but more important perhaps is the fact that they are entrusted, on behalf of the people, with independent and far-reaching powers. Furthermore, there is the reality that the process of judicial appointments lacks innate transparency and that, outside of the limited scope of FOI, there is very little by way of effective transparency mechanisms. Against this background, therefore, there is a particular public interest in knowing whether serving judges have had their candidacies supported by public representatives and, if so, by which public representatives (and from which political party, if any). This public interest carries even greater weight in circumstances in which the Government, in advising the President in relation to the appointment of persons to judicial office, is not confined in its advice to the particular names recommended as suitable by the Judicial Appointments Advisory Board. Neither is the Government confined, in its advice to the President, to naming only persons who have applied to the Judicial Appointments Advisory Board whether or not such persons have been recommended by the Board.

In the written submission from the judges, provided by the Department, the following is said:

"Under the provisions of the Court and Court Officers Act 1995, the Government, when advising the President in relation to the appointment of a person to judicial office, must first consider persons who have been recommended by the Judicial Appointments Advisory Board (JAAB), which consists of the Chief Justice, the President of the High Court, the President of the Circuit Court, the President of the District Court, the Attorney General, a practising barrister nominated by the Law Society and not more than three persons nominated by the Minister. The Board cannot submit nor recommend the name of a person unless that person meets the eligibility requirements set out by law in relation to the post in question. Thus, no judge was appointed on foot of a representation made on his or her behalf but was appointed because he or she was recommended by the JAAB."

This observation is correct in the case of judicial appointments based on the recommendations of the JAAB; but, where an appointment is made of a person not on the list of recommended names provided by the JAAB, this observation is not necessarily correct. It appears to be the case that the Government, having first considered the names recommended by the JAAB, may then proceed to advise the President to appoint a person outside of the JAAB recommended names; where this occurs, the person so appointed need not necessarily be a person who " meets the eligibility requirements set out by law in relation to the post in question".

In any event, there is a public interest in knowing, in the case of a choice made by the Government from within the list of names recommended by the JAAB, whether the person or persons chosen have had representations made on their behalf to the Minister.

The question then is whether the public interest in transparency, which would be served by the release of the records at issue, outweighs the public interest in upholding the right to privacy of the judges concerned. It is clear that the FOI Act envisages that, in certain circumstances, the right to privacy will be set aside in the wider public interest. This is the case notwithstanding the right to privacy in Irish law (and which has a Constitutional basis) and the right of each person under the European Convention on Human Rights (ECHR) to "respect for his private and family life". In both cases, the right to privacy is a qualified right. In the case of Irish domestic law, the High Court has declared that "[privacy] is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality" (Hamilton P. in Kennedy v Ireland [1987] IR 587). In the case of article 8 of the ECHR, dealing with the right to respect for one's "private and family life", this right is qualified to the extent that any interference with this right must be "in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of other".

Having considered the matter carefully, I am satisfied that the public interest served by transparency, arising from the identification of those judges who have had political representations made on their behalf, outweighs the public interest served in upholding these judges' right to privacy. I am satisfied that any loss of privacy or of respect for private and family life this occasions is proportionate, in accordance with the law and serves the common good. The requirement for transparency in this context applies only to the identification of the judges concerned and does not apply to other personal information (the home addresses) contained in some of the records. I find accordingly.

Personal Information of Deceased Judge

While there appears to be some uncertainty as to whether, in Irish law generally, there is a right to privacy in the case of deceased persons, it is nevertheless clear that the section 28(1) exemption applies to the personal information of deceased persons. Accordingly, the personal information of the deceased judge in this case is, in principle, exempt from release under the FOI Act. However, it is necessary to consider in this instance also whether the public interest served by the release of the deceased judge's personal information outweighs the public interest in upholding that judge's right to privacy.

The submission from the spouse of the deceased judge suggests that any intrusion on the right to privacy of a deceased person is in a different category to an intrusion on the right to privacy of a living person. The spouse argues that it is relevant to bear in mind that the deceased judge is not in a position to "verify or defend [himself/herself] in what might flow from this". This suggests a view that having had representations made in advance of a judicial appointment carries some negative connotations. At the same time, the spouse observes that "all Judicial appointments since the foundation of the state are Political appointments" which suggests that the making of political representations is the norm.

The spouse also suggests that the identity of the requester in this case, a journalist with The Sunday Times, "a Murdoch organisation", is relevant and should (because of the unethical behaviour of another Murdoch newspaper) weigh against the grant of the request. It is long established that the identity of an FOI requester, and the motivation of a requester, are generally of no consequence in FOI decision making.

Having considered the matter carefully, and for the same reasons as set out above, I am satisfied that the identity of the deceased judge (but not the home address) should be released in the public interest. I find that the public interest served by transparency outweighs the public interest served in upholding the right to privacy of the deceased judge.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department in this case. I direct, in the case of the records relating to the six judges concerned, that their names (but not their home addresses) should be released wherever mentioned in the records in question.

Right of Appeal

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.  Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Fintan Butler

Senior Investigator

09 August 2011