Case Number: 160282

Whether the Courts Service was justified in refusing the applicant's request for access to records disclosing the names of Court registrars who attended court on specified dates on the basis that it does not hold the records sought

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review has its background in a dispute between the applicant and the Courts Service in connection with court proceedings involving the applicant which took place on various dates between 2005 and 2007. A key issue arising is that the applicant disputes the claims of the Courts Service that a court registrar was present in court on eight specific dates. On 11 November 2015, the applicant submitted a request to the Courts Service for the names of Court registrars who, according to the Courts Service, were in court on the dates in question. He also sought details of the investigation of the matter as referred to in a letter of 18 June 2015 to Deputy Niall Collins.

The Courts Service issued its decision on 10 December 2015, refusing access to the names of the court registrars on the ground that no record containing the information sought exists and providing a written response in relation to the enquiries made as referred to in the letter to Deputy Collins.

The applicant sought an internal review of the Courts Service's decision and on 14 January 2016 the Courts Service issued its internal review decision, affirming the original decision. On 29 June 2016, the applicant sought a review by this Office of the Courts Service's decision.

The Courts Service has made a submission setting out in detail the steps taken by it to locate relevant records, while the applicant has also made lengthy submissions. Submissions have also been made by representatives on the applicant's behalf. I therefore consider that this review should now be bought to a close by issue of a formal binding decision.

In conducting this review I have had regard to the communications between this Office and both the applicant and the Courts Service, the communications between the applicant and the Courts Service and the submissions furnished by the applicant to this Office.

 

Preliminary Matter

In the course of this review, the applicant, as well as representatives on his behalf, made extensive submissions, going primarily to the background context of his dispute with the Courts Service. However, these issues are not relevant to this review. The remit of this Office does not extend to examining the actions of the Courts Service in its dealings with the applicant. The FOI Act provides for a right of access to records held by FOI bodies, subject to certain exceptions. The role of this Office in cases such as this is to review the decisions taken by those bodies on requests for access to such records. Analysis of why or whether maladministration may have occurred lies in the province of the courts or the Ombudsman, not the Information Commissioner.

I will therefore have regard to those submissions furnished by the applicant and his representatives going directly to matters relevant to the application of the FOI Act, but must disregard the more general issues raised by the applicant and on his behalf. I should add that section 13(4) of the Act requires that, subject to the provisions of the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

 

Scope of Review

This review is concerned solely with the question of whether the Courts Service was justified, under section 15(1)(a) of the FOI Act, in refusing access to records disclosing the identity of Court registrars sitting on the specified dates, and to further records relating to "the CEO's investigation" on foot of representations made by Deputy Collins on the applicant's behalf, on the ground that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

 

Analysis and Findings

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).

In his FOI request, the applicant sought two categories of records; firstly, "the names of those registrars whom the CEO states were in court on dates outlined in [the applicant's] affidavit to him...", and secondly, "all information and details of the CEO's investigation, as stated by him in his letter dated 18th June 2015 to Deputy Niall Collins".

Regarding the first category, in its original decision, the Courts Service indicated that "no record of the name of the Court registrar who attended court on the dates outlined" exists. In its submission, the Courts Service provided more detail in this regard, stating that the practice on Cork Circuit is for registrars to prepare what is described as a "top sheet" in relation to hearings, setting out "the name of the judge hearing the case, the date and location of the sitting, the names (if known) of the legal representatives attending, those sworn to give evidence if applicable and the order of the court." Prior to 2007 these records were maintained manually. The Courts Service stated that a computerised system was introduced in 2007, however this system does not have a facility to record the name of the registrar sitting on a particular date.

The Courts Service submitted that there it is not the usual practice on Cork Circuit that these records to be signed, nor for the registrar's name to be entered. The Courts Service stated that this is for the reason that, "if there was/is any dispute as to the content of an order of the court the only option available to the parties to the case was/is to re-enter the matter before the court for clarification".

The "top sheets" for the relevant dates were previously provided by the Courts Service to the applicant, who included copies of same in his submission to this Office. The applicant had previously been provided with these records in relation to the specified dates. It is apparent that these records contain entries relating to the litigation with which the applicant is concerned, but these entries do not include the registrar's name or signature. The applicant and his representatives referred to the fact that the Circuit Court is a court of record, going on to state the view that the absence of the registrar's name represents a defect in the record. This Office has no competence in relation to this question, but is instead concerned with the applicant's right of access to records.

The applicant in his request for internal review stated his opinion that the Courts Service should attempt to extrapolate from the handwriting on those records the identity of the registrars on the specified dates. The Courts Service took the position that it would be inappropriate to make an attempt to surmise the registrar's identity, in the absence of a conclusive record, even if it were possible to do so. I am satisfied that, even were I of the view that it would be appropriate or indeed feasible for the Courts Service to carry out an exercise of the type suggested by the applicant, there is nothing in the FOI Act that could oblige the Courts Service to take such a step.

The applicant further raised the possibility of examining travel and subsistence claims so as to determine which registrar had travelled to a particular court building on the specified dates. In correspondence with this Office, the Courts Service argued that such records would not demonstrate conclusively which registrar sat in court on a particular date, merely that they had travelled to a particular court location.

On foot of queries raised by this Office, the Courts Service confirmed that no central record is maintained by the Cork Circuit Court office in relation to the assignment of registrars on a given date. The Courts Service submitted that in the course of this review it carried out searches of "top sheets", registrars' note books and diaries, and travel and subsistence records. However, while it may be possible from these records to make an educated guess as to identity of the registrar sitting on a given date as a matter of probability, the Courts Service claims that no record exists to conclusively demonstrate the identity of the registrar sitting on the specified dates.

A specific enquiry was made of the Courts Service as to whether any record existed of Ms. Deirdre O'Mahony, County Registrar for Cork, having contacted another registrar before signing orders in relation to the litigation in question. The Courts Service stated that, having made enquiries, no such record exists or can be found. It further submitted that because Ms. O'Mahony shares an office with court registrars, her normal practice would be either to contact the court registrar by phone or in person in respect of any queries she might have.

The applicant and his representatives suggested that the Courts Service could or should have contacted registrars on Cork Circuit for the purpose of establishing which individual was present on the specified dates. There is no obligation under the FOI Act that such a step should have been taken. As previously stated, the FOI Act is concerned with access to records existing at the time of the FOI request. There is no obligation to create a record where none previously exists. The applicant, in his submissions, appeared to take the view that the required standard is for the Courts Service to make all reasonable efforts to identify the relevant registrars. However, this is not what the FOI Act requires. Rather, the question before me is whether the Courts Service has taken all reasonable steps to locate records that would identify the registrars who were in court on the specified dates. In any event, it seems to me that the applicant does not expect the Courts Service to be in possession of a record which contains details of the names of the court registrars who were present on the relevant dates as it his contention that there were no registrars present.

While the FOI Act provides for a right of access to extant records held by FOI bodies, it does not provide for a right of access to records that a requester considers ought to exist, nor does the FOI Act oblige any FOI body to create a record in circumstances where a record does not exist or cannot be found, even if it is acknowledged that such a record ought to exist. While the applicant's request in this case was framed as a question, the Courts Service has made efforts to facilitate him by attempting to identify records that might disclose the information he seeks, and have demonstrated in my view that significant further attempts were made in the course of this review to locate records that can conclusively fulfil the applicant's request. I am satisfied that these efforts have ultimately proved fruitless.

Accordingly, I find that the Courts Service was justified under section 15(1)(a) of the FOI Act in refusing the first category of the applicant's request on the basis that the records sought do not exist.

Turning to the second category of the applicant's request, in its original decision the Courts Service provided details of the steps taken by its CEO to enquire into the matters raised by Deputy Collins on the applicant's behalf, and outlined his findings. However, in my view, the Courts Service was incorrect in taking this approach. As previously outlined, the FOI Act provides for a right of access to extant records held by FOI bodies.

In the course of this review, Mr. Niall Mulligan of this Office put it to the Courts Service that it should properly have interpreted the applicant's FOI request as being for access to records, as it had done in relation the other category of the request. The Courts Service accordingly released to the applicant 21 records generated on foot of the Deputy Collins' enquiry, consisting of correspondence between its CEO, managers in the Cork Circuit Court Office, and other officers.

The Courts Service submitted that no further records exist relating to the enquiries made by the CEO pursuant to Deputy Collins' enquiry, stating that all relevant persons had been contacted and email records retrieved. I have no reason to doubt this submission.

Having given the matter careful consideration, including through an examination of the records provided to the applicant in the course of this review, I am satisfied that the Courts Service has made all reasonable efforts to locate records relevant to the second category of the applicant's request, and no further records exist or can be found. Accordingly, I find that the Courts Service was justified under section 15(1)(a) of the FOI Act in refusing the second category of applicant's request on the basis that the further records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2015, I hereby affirm the Courts Service's decision.

 

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator