Whether the Courts Service was justified in its decision to refuse to release details of expenses claimed by each judge of the Supreme Court, High Court, Circuit Court and District Court for the year 2012 on the basis of sections 28 and 24 of the FOI Act.

Review Application under the Freedom of Information Acts 1997 & 2003 (the FOI Act) to the Information Commissioner.

Background

The applicant submitted an FOI request to the Courts Service on 21 February 2013 requesting '[e]xpenses claimed by judges of the Supreme Court, High Court, Circuit Court and District Court in 2012 with figures per judge and naming each of the judges.'

The Courts Service issued its decision on 26 March 2013, partially granting the request. The Courts Service provided the applicant with an explanation of the types of expenses claimed by judges and with tables detailing expenses claimed by all judges for 2012 with the names of judges withheld on the grounds that this was personal information which is exempt under section 28 of the FOI Act. The Courts Service also decided that the information was exempt under section 24 of the Act on the basis that release of the judges' names could affect the security of the State.

The applicant sought an internal review of the Courts Service's decision on 28 March 2013. In its internal review decision dated 29 April 2013, the Courts Service upheld its original decision. The applicant submitted an application for review to my Office on 30 May 2013.

During the course of the review, Mr. Christopher Campbell of my Office wrote to all affected judges outlining his preliminary view that the Courts Service was not justified in deciding to withhold the names of the individual judges and inviting their submissions in response. Submissions were received from 29 judges from a total of 174 notified of the review. My Office also received a letter from the Association of Judges of Ireland (AJI) which stated that it represents in excess of 90% of Judges serving in the State. While the AJI stated that it did not propose to make a submission on the case, it did, however, ask that particular attention be given to the concerns of the judges as to the implications of disclosure of their identities for their own personal security and that of their families and also expressed a view that it is difficult to see what public interest is served by disclosing the individual names in addition to the information already supplied.

Twelve of the judges who responded stated that their views were represented fully by the submissions of the Courts Service and the AJI, three judges expressed no view as to whether the information should or should not be released, two had no objection to the release of the information, one had no objection unless the release of the information would be of concern to the Gardaí, and one retired judge had no objection to his/her information being released but expressed concern that it may prejudice sitting Judges. The balance of the third party submissions also objected to release of the information. Two further submissions from the Courts Service were also received. The President of the High Court also forwarded a letter from the Garda Commissioner in support of withholding judges' individual names.

In conducting this review I have had regard to the decisions of the Courts Service on this request and its submissions to my Office, to the communications of the applicant with the Courts Service and my Office, to the submissions of third parties, and to the provisions of the FOI Act.

Scope

This review is concerned with the question of whether the Courts Service was justified in refusing to release the names of judges who claimed expenses in 2012 on the grounds of sections 24(1)(a) and 28(1) of the FOI Act.

Preliminary Matters

Creation of a record
In its submissions to this Office, the Courts Service stated that since it came under the remit of the FOI Act in 2000 it has provided comprehensive details of the expenses paid to individual judges, while withholding names, on foot of FOI requests and that for the past three years it has issued a press release each year setting out the relevant details for the preceding year. It stated that in order to provide the detailed breakdown of the expenses paid, it runs a query on its financial management system and creates a record/report which sets out the expense payments made. The Courts Service went on to state that it is not obliged to create a record in order to respond to FOI requests. It referred specifically to a previous review carried out by my Office which referred to the fact that the FOI Acts do not require public bodies to create records if none exist.

While it has not expressly stated so, it appears that the Courts Service is arguing that it should not have to release the names of the judges as to do so would require the creation of a record. If this is the case, I do not accept that argument. It is clear to me that the Courts Service holds information on the expenses claimed by each judge individually. At the very least, I would expect it to hold records of individual expense claims and clearly its financial management system contains the information in question. It is noteworthy that the definition of "record" for FOI purposes is very wide indeed. Section 2 of the FOI Act defines a record to include any of the following:

[A]ny memorandum, book, plan, map, drawing, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or images or both), any form in which data (within the meaning of the Data Protection Act, 1988) are held, any other form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically and anything that is a part or a copy, in any form, of any of the foregoing or is a combination of two or more of the foregoing.

It is a matter for each public body to consider the format in which information might be released on foot of an FOI request. It will sometimes be the case that the creation of a new record is the most efficient mechanism for the public body to grant a request as opposed to the alternative of granting partial access to a large number of records. In this case, I am satisfied that the information sought is contained in a record or records held by the Courts Service and that a right of access exists unless the information is otherwise exempt.

Burden of Proof
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified. In other words the onus is on the Department to show that its decision to refuse access to the names of the judges was justified.

Analysis and findings

Section 28

Section 28(1)
The Courts Service's original decision and internal review decision both stated that the information requested was personal information within the meaning of section 2 of the Act and is thereby exempt from release under section 28. The Courts Service submissions and some of the third party submissions received in this case reiterated this view.

Section 28 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential, and goes on to list 12 types of information which are included in the definition, including information relating to the financial affairs of the individual.

It is clear that, in a general way, details of expenses claimed by individual judges can be said to be information relating to the financial affairs of those judges. Accordingly, I am satisfied that the release of details of the expenses claimed by each named judge would involve the disclosure of personal information relating to the judges and I find, therefore, that section 28(1) of the FOI Act applies. The effect of section 28(1) is that a record disclosing personal information relating to a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies - in this case sections 28(2) and 28(5).

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(1) does not apply. I am satisfied that none of the circumstances identified at section 28(2) arises in this case and I find, therefore, that section 28(2) does not apply.

Section 28(5)
Section 28(5) provides for the grant of a request to which section 28(1) applies in certain circumstances. The exemption can be set aside if (a) on balance, 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. I do not see that the release of the information at issue would benefit the judges concerned. Accordingly, I find that section 28(5)(b) of the FOI Act does not apply.

Public Interest
I shall now consider the question of the public interest in releasing the information under section 28(5)(a).

The language of section 28 and of the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

In its initial decision on the FOI request, the Courts Service argued that the right to privacy outweighs the public interest in favour of disclosure, including the public interest in having access to information and the public interest in the accountability for use of public funds. Against release, it considered the possibility that disclosure of records may be misleading and result in inappropriate comment based on unreliable conclusions which may damage the interest of individual Judges and the possibility that such comparisons may result in Judges being forced to release further personal information relating to their financial affairs to deal with inaccurate speculation. It identified a public interest in the non-disclosure of the information sought to protect the security of the State and the independence of judicial decisions. At internal review stage, the Courts Service also considered that the release of names of judges along with information relating to their financial affairs could have a negative impact on the number of persons who might apply for judicial office.

Many of the arguments presented by the Courts Service for the withholding of the judges' names were also reflected in a number of the submissions received from individual judges. One judge took issue with Mr Campbell's reliance upon a previous decision of my Office in forming his preliminary views on the matter. In the case in question, Case 99168 - Mr Richard Oakley, The Sunday Tribune Newspaper and the Office of the Houses of the Oireachtas, the then Commissioner, the late Kevin Murphy, considered that the public interest in releasing details of the expenses paid to named elected members of the Houses of the Oireachtas outweighed, on balance, the public interest in protecting their privacy rights. In this case, the judge in question argued that judges are not elected by the public and that the same public interest considerations cannot apply. The judge suggested that judges are more akin to other public servants and stated that s/he was not aware of any precedent for publishing the names of other unelected persons paid by the public purse with details of their expenses alongside their names. I disagree. I am aware that my Office has previously directed the release of expenses paid to named officials of public bodies. I further note that my predecessor, Emily O'Reilly, welcomed the practice of disclosure of such details outside of the FOI process in her 2009 Annual Report. She stated:

By far the most recurring subject of reports throughout the year was that of expenses paid by public bodies, particularly for travel by officials or board members of those bodies, or by public representatives. I welcome release of expenses records by public bodies at the first stage of request without requesters having to come to my Office for review. This FOI scrutiny allows the public to form its own view on the use of taxpayers' money and means that public bodies are accountable for decisions to approve expenses. It also allows for the examination of the standard of governance in those bodies.

Another judge expressed a concern that if the information is published in a manner that a particular judge feels is out of context and vexatious and might diminish him or her in the eyes of the public, current convention would appear to discourage him or her from responding in defence of his or her interest, the convention being the constraints imposed on members of the judiciary in partaking in public discourse. I will address this argument below.

Many of the remaining arguments against release contained in the submissions of the judges, and indeed, the submissions of the Courts Service, the AJI and the Garda Commissioner, relate to the security and safety of individual judges. I will address those arguments in my consideration of the applicability of section 24 below.

An underlying argument in the various submissions received is the argument that the public interest would be sufficiently served by the release of the details of expenses paid while preserving each individual's anonymity. In considering whether the public interest in releasing the names of the individual judges would outweigh, on balance, the public interest in protecting their privacy rights, it is legitimate, in my view, to consider the nature of the information at issue.

Disclosure of the names of the individual judges would disclose how much each judge received in expenses for the year 2012. As the Courts Service explained in its original decision of 26 March 2013, expenses paid to judges include travel and subsistence expenses necessarily incurred for attendance in court away from the home location, attendance at judicial conferences as part of judicial training, judges attire etc. According to the Courts Service, almost all expenses paid to judges are expenses necessarily incurred by them in travelling to court venues. Therefore, while I accept the information sought comes within the definition of 'personal information' for the purposes of the FOI Act, it is nevertheless clear that the information relates to judges' roles as public officials and relates to payments made to them in connection with their public duties. As Kevin Murphy noted in Case 99168 when considering the release of expenses paid to the elected members of the Houses of the Oireachtas,

It is pertinent to recall at this point that the information at issue in this case concerns amounts paid to individuals to defray expenses incurred by them in discharging their functions as public representatives. The payments do not arise out of some private activities or private aspect of their lives. On this point they can be distinguished from, say, a payment made to a claimant under the Social Welfare Acts, where there is an expenditure of public money but the payment derives from some private aspect of the claimant's life such as family circumstances or inadequacy of means.

I find that the same considerations apply in this case.

It is inevitable that public officials run the risk of unjust attack in relation to aspects of the performance of their public duties. In my view, the possibility of unjust attack as a reason not to disclose information such as that at issue in the present case, which relates to the spending of public money, does not, of itself, provide sufficient ground for refusing to disclose the identities of the judges. In Case 98078 - Mr Martin Wall and the Department of Health and Children, Kevin Murphy stated that the possibility of the public misunderstanding information is, generally speaking, not a good cause for refusing access to the records of public bodies. He considered that, apart from anything else, such an argument seems to be based on an assumption, which he did not accept, that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions. I agree. I fully appreciate that judges may hold the view that they are constrained, by convention, from partaking in a public debate on the matter. However, it seems to me that there is nothing to prevent the Courts Service from partaking in such debate. Indeed, I note that the Courts Service provided the applicant in this case with a comprehensive explanation of the nature of, and the reasons for, the expenses payments made. An argument that information should be withheld on the ground that it might be misunderstood or misrepresented is not an argument that I can accept and is one which is at odds with the aim of the Act which is stated to be, inter alia, to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in possession of public bodies.

I have also considered the arguments that the release of the details of the expenses paid while withholding the names of the judges sufficiently serves the public interest. Again, I find the comments of Kevin Murphy in Case 99168 to be of relevance. He commented:

[I]t seems to me that it would hardly be appropriate to refer to details of expenses incurred by public servants or public representatives in the course of their duties as falling within a "secluded area of activity" referred to by Henchy J [Norris v Attorney General [1984] IR 36]. In fact, the reverse is true. It is clear that any right of privacy in this area has to be greatly circumscribed by one essential component of the public good viz. accountability for the use of public funds in a democracy.

There are existing mechanisms designed to ensure accountability in relation to the expenditure of public funds and I make no comment on their adequacy in relation to expenses incurred by members of the Oireachtas. On a general level, I do not accept that the existence of current safeguards in relation to public expenditure means that there is no public interest in creating further safeguards. The very existence of secrecy carries with it the scope for abuse. In contrast, openness in relation to public expenditure is an important additional safeguard against abuses of all kind. I consider that the public interest in openness about public expenditure is of very great significance.

I agree that the public interest in openness about public expenditure is of very great significance. While I accept there is a difference in the status of office held by judges and members of the Oireachtas, in my view the same principle applies in regard to the transparency of expense payments from public funds. I consider that the disclosure of the information at issue would serve to allow for informed public debate on the level of expenses paid to judges and in accountability for payment of those expenses. It further seems to me that disclosure on an anonymous basis would not serve the public interest in openness and accountability to the same extent. The option of anonymous disclosure was considered by Kevin Murphy in Case 99168. He did not accept that there is true accountability for the use of public funds where expense details are released on an anonymous basis. He commented:

The press commentary which followed the release of the anonymous records in April was hardly informed. It was characterised largely by speculation as to who claimed what. In my view this was a distraction which prevented, rather than contributed to, an informed debate... If members of the Oireachtas or senior public officials need only disclose their expenses or remuneration on a group basis then the inevitable result is that real and worthwhile public scrutiny of expenditure is reduced or eliminated.

As matters stand, judges are already required by law to disclose significant aspects of their private financial affairs. Section 18 of the Ethics in Public Office Act 1995 requires members to disclose a wide range of interests. The existence of this requirement recognises that the need to preserve and enhance public confidence in the integrity of public office holders can require an encroachment on the privacy of such persons which would be neither necessary nor appropriate in the case of the ordinary citizen.

In the light of all of the above, it is my view that the public interest in ensuring accountability for the use of public funds outweighs any right of privacy which judges might enjoy in relation to details of their expenses claims. I find, therefore, that the release of the names of the judges which will disclose the amount of expenses paid to each judge in 2012 outweighs, on balance, the public interest in upholding the right to privacy of the judges. I consider that the Courts Service was not justified its decision to refuse to release the withheld information in accordance with section 28 of the FOI Act and I find accordingly.

Section 24(1)(a)

The Courts Service, in its internal review decision, cited section 24(1)(a) as a grounds for refusing the applicant's request. Section 24(1)(a) provides that a head may refuse to grant a request under section 7 in relation to a record if, in the opinion of the head, access to it could reasonably be expected to affect adversely the security of the State. For the exemption to apply, the decision maker must first of all identify the particular adverse effect on the security of the State and then consider the reasonableness of any expectation that such an adverse effect would occur. For the public body to succeed in its arguments, I have to be satisfied that granting access to the records, in respect of which the exemption is claimed, could reasonably be expected to have the adverse affect so identified. I do not have to be satisfied that such an outcome will definitely occur. It is sufficient for the public body to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

The Courts Service stated that judges have a central role in protecting the security of the State and it considered that the release of the information at issue could put judges or their families at risk and that a threat to the safety of a judge or their family might compromise judicial independence and thereby could affect the security of the State, particularly in political cases and cases being heard in the Special Criminal Court. In its submission of 5 July 2013, the Courts Service argued that it has a duty of care to ensure that the personal safety of all those who work in security sensitive areas, including members of the judiciary, is not jeopardised in any way, however remote the possibility may be. It went on to describe security concerns arising from recent incidents in the Courts.

Essentially, the argument presented is that the disclosure of details of expenses paid to individual judges would allow for the identification of judges who are away from home frequently, that the availability of such information could pose a risk to judges and/or their families, and that a threat to the safety of a judge or his/her family might be used to compromise judicial independence, thereby affecting the security of the State. Indeed, the majority of the judges who made a submission cite increased risk to their families and their homes as a result of their being away from home as the primary argument for withholding details of their names.

As I have indicated previously, the President of the High Court forwarded a letter from the Garda Commissioner. The Garda Commissioner stated that the release of any information that could potentially increase public disquiet, such as information in relation to the personal circumstances of judges is of concern to An Garda Síochána. The Commissioner stated that it would be a serious concern if information that is made available in the public forum leads to travel arrangements, itineraries and absences from home of judges becoming known. She went on to state that the release of information of this nature with the expenses attributed to individual judges in itself may not appear to be of consequence but that the release of such information will, with a high degree of probability, lead to further investigations and scrutiny and she suggested that this attention would cause concern from a security perspective.

The question I must consider is whether it is reasonable to expect that the security of the State would be adversely affected arising from the disclosure of expenses paid to individual judges in 2012. It seems to me that such an expectation is not reasonable. For one, granting the request in this case would disclose nothing more than the overall amount of expense payments received by specific judges for expenses incurred in the course of the performance of their functions during 2012. None of the submissions received have had any regard to the fact that the information at issue is historic and that the level of detail does not extend beyond describing the general nature of the expense, i.e. in respect of travel, subsistence, or judicial attire and incidental expenses. In assessing the strength of the concerns raised in relation to the proposed release of information, it is important to be clear that granting this request would not disclose information such as judges' itineraries, addresses or locations. Secondly, the identities of which judges are sitting in a number of the courts on any given day can usually be discerned from the Legal Diary published on the website of the Courts Service. Such information published in the Legal Diary, already publicly available, is not, it would appear, considered an undue security risk. It is also noteworthy that since 2009, the expenses paid to High Court judges and above in the UK are published for each term. According to the website of the Courts and Tribunals Judiciary (www.judiciary.gov.uk), the claims primarily relate to the expenses incurred by High Court judges in travelling to and from the different Circuits to try cases at local courts.

Having considered the submissions of the Courts Service and third parties, it appears to me that the harm identified in submissions to this Office is merely possible or speculative in nature, and not of a type for which real and substantial grounds exist. Furthermore, while I accept that the Courts Service has a duty of care to ensure that the personal safety of all those who work in security sensitive areas, including members of the judiciary, is not jeopardised in any way, it is not appropriate for a public body to refuse a request for records under section 24 on the basis of the remote possibility of a particular harm arising. As I have already outlined, section 34(12)(b) of the FOI Act places the onus on the public body of satisfying me that its decision to refuse to grant a request was justified. While I acknowledge that the parties in this case have concerns about their safety and security, in my view the Courts Service has not demonstrated that granting access to the names of judges alongside the corresponding amount of their expenses for 2012 could reasonably to expected to pose a risk to judges and/or their families and thereby affecting adversely the security of the State. Accordingly, I find that section 24(1)(a) does not apply.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Courts Service and direct that the information requested be released to the applicant.

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.

Peter Tyndall
Information Commissioner