Whether the Department was justified in refusing access to records correspondence between the Department and the Judicial Appointments Advisory Board under section 32(1)(a) of the FOI Act.

Review application to the Information Commissioner Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background

On 22 January 2013, the applicant made a request under the FOI Act for copies of correspondence between the Minister for Justice and the Judicial Appointments Advisory Board (the Board) since 2007. In response, while it did not issue a formal decision in accordance with the provisions of the FOI Act, the Department informed the applicant that the Board is an independent body set up pursuant to part IV of the Court and Court Officers Act 1995 and that section 20 of that Act provides that all proceedings of the Board are confidential and are not to be disclosed except for the purposes of the Act. It further explained that the Board is not constituted by or subject to the control of the Department, that all records of the Board are under the control of the Board, and that the Board is not a body listed as a public body for the purposes of the FOI Act and therefore is not subject to the Act.

On 24 January 2013, the applicant informed the Department that he wished to appeal the Department's decision. He argued that section 20 of the Court and Court Officers Act 1995 does not apply to communications from the Board [my emphasis]. The Department did not reply to the internal review request within the time-frame provided for in the FOI Act and on 25 February 2013, the applicant applied to this Office for a review of the Department's decision on his request.

During the course of the review and at the request of this Office, the Department issued an 'effective decision', in which it decided to refuse the request under section 10(1)(a) of the FOI Act on the grounds that the records sought do not exist as they are not retained in the Department. It explained that it had interpreted the FOI request as relating to records between the Department and the Board in respect of nominations of individuals for judicial appointment, i.e. the lists of persons recommended by the Board under the provisions of the Court and Court Officers Act 1995. I note that the applicant confirmed to Mr Edmund McDaid of this Office in a recent telephone conversation that he does not require access to administrative correspondence but rather is seeking access to correspondence relating to the filling of judicial appointments. Specifically, he requires access to communications from the Board to the Minister.

Following further correspondence with this Office, the Department accepts that it holds certain records relating to the filling of judicial appointments but it is refusing access to such records under section 32 of the FOI Act. Mr McDaid wrote to the applicant on 26 August 2013, setting out his preliminary views that the Department was justified in deciding to refuse access to any relevant records it might hold. Mr McDaid also afforded the applicant an opportunity to make a further submission having regard to those preliminary views. As no such submissions have been made, I consider that the review should now be brought to a close by the issue of a formal binding decision. In conducting this review I have had regard to correspondence between the applicant and the Department, and to correspondence between this Office and both the applicant and the Department.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in refusing access under section 32 of the FOI Act to correspondence it holds relating to the filling of judicial appointments.

Findings

Section 32(1)(a) of the FOI Act provides that access to a record shall be refused where the disclosure of the record is prohibited by any enactment, other than an enactment listed in the Third Schedule of the FOI Act. It is the Department's position that the disclosure of any records it holds relating to the filling of judicial appointments is prohibited by section 20 of the Court and Court Officers Act 1995 and that section 32(1)(a) of the FOI Act therefore applies. As the 1995 Act is not listed in the Third Schedule of the FOI Act, the question I must consider, therefore, is whether the Department was justified in deciding that the disclosure of any records it holds relating to the filling of judicial appointments is prohibited by the 1995 Act and that section 32(1)(a) applies.

The Board was established pursuant to the provisions of section 13 of the 1995 Act "for the purposes of identifying persons and informing the Government of the suitability of those persons for appointment to judicial office". Part IV of the Act contains details of the procedures to be followed by the Board in carrying out its statutory functions. Section 20 of the 1995 Act provides that "All proceedings of the Board and all communications to the Board shall be confidential and shall not be disclosed except for the purposes of this Act". The applicant argued that while section 20 may protect communications to the Board from release, it cannot protect communications from the Board to the Department from release. However, it seems to me that such communications may well be protected if they are deemed to comprise "proceedings of the Board".

As the 1995 Act does not define the term "proceedings", I have considered the ordinary and literal meaning of the word. The Oxford English Dictionary defines proceedings as "an event or a series of activities involving a set procedure. Section 14 of the 1995 Act provides that the Board may adopt such procedures as it thinks fit to carry out its functions, while section 16 provides that the Board shall submit to the Minister certain details relating to individuals wishing to be considered for appointment to judicial office. It seems to me that an exchange of correspondence between the Department and the Board on matters relating to the filling of judicial appointments is clearly part of the proceedings of the Board relating to the execution of its statutory functions. In considering the purpose of section 20 of the 1995 Act, it further seems to me that it was the clear intention of the Oireachtas that the proceedings of the Board relating to its statutory function of "identifying persons and informing the Government of the suitability of those persons for appointment to judicial office" should remain confidential.

Accordingly, I find that the release of the records sought, relating to the filling of judicial appointments, would involve a disclosure of the proceedings of the Board and would be contrary to the requirement, as set out in section 20 of the 1995 Act, that such proceedings shall not be disclosed except for the purposes of the 1995 Act. Accordingly, I find that the Department was justified in refusing the request pursuant to the provisions of section 32(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department in this case.

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. Such an 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.

Stephen Rafferty,
Senior Investigator
27 September 2013