Whether the Courts Service was justified in its decision to refuse an application under section 10 for statements of reasons for various acts relating to the applicant's interactions with the courts and/or the Courts Service on the ground that she is not entitled to the statements of reasons sought

1 November 2018 

Background

The case has its background in interactions the applicant had with the courts and/or the Courts Service in the course of legal proceedings to which she was a party. In January 2018, she made an application under section 10 of the FOI Act for statements of reasons for twelve different matters relating to those interactions. In its decision of 31 January 2018, the Courts Service refused the application under section 42(a)(i) of the FOI Act on the ground that the Act does not apply to court records. It provided some information in respect of an appeal before the Supreme Court to which she was a party and how she should prepare for the appeal..

On 21 February 2018 the applicant sought a review of that decision wherein she argued that section 42 is concerned with restricting the right of access to records as opposed to applications for statements of reasons made under section 10. She also argued that the matters in question relate to the general administration of the courts or the offices of the courts and that section 42 does not exclude such records.

In its internal review decision, the Courts Service stated that court records are under the control of the courts, not the Courts Service, and that it is not required to give reasons where to do so would require the giving of information contained in an exempt record. It stated that the acts for which reasons were sought were either not acts of the Courts Service or related to court proceedings and that such records are excluded.

The applicant sought a review by this Office of the Courts Service's decision on 1 May 2018. Both the applicant and the Courts Service made submissions in the course of this review. I have therefore decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Courts Service in connection with her request. I have also had regard to the correspondence between this Office and both the applicant and the Courts Service on the matter. In referring to the relevant acts which the applicant has identified in her original application, I have adopted the numbering system she used in that application for the various parts.

 
Scope of Review

This review is concerned solely with whether the Courts Service was justified in its decision to refuse the applicant's request under section 10 for statements of reasons for various acts relating to her interactions with the courts and/or the Courts Service on the ground that she is not entitled to the statements of reasons sought.

Preliminary Matter

Part 11 and the second half of part 12 of the application comprise requests for information as opposed to requests for reasons for acts of the Courts Service. As the applicant did not identify any acts of the Courts Service for which a statement of reasons might be required, I have given no further consideration to those parts. I note, however, that the Courts Service provided certain information to the applicant in respect of the matters identified.

Analysis and Findings

Section 10
Section 10(1) of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Subsection (2) provides that nothing in section 10 shall be construed as requiring the giving to a person of information contained in a record which would fall to be refused as an exempt record.

The Courts Services argued that section 42(a)(i) applies to applications made under section 10 for statements of reasons. While section 42(a)(i) is, by virtue of section 10(2), relevant to the question of whether a person is entitled to a statement of reasons under section 10, it does not provide an absolute prohibition on the entitlement to such statements. If a record is exempt by virtue of section 42(a)(i) then the public body is not required to include in a statement of reasons any information that is contained in that record. This may mean that, on occasion, a body must refuse to provide a statement of reasons altogether as to do so would require the disclosure of information contained in exempt records. On the other hand, if the body can provide a statement of reasons without disclosing information contained in exempt records then it must do so if the applicant has an entitlement to such a statement.

The Courts Service does not have to provide a statement of reasons if doing so would require the disclosure of information contained in a record that is exempt by virtue of section 42(a)(i). However, in such cases I would expect the Courts Service to be in a position to show this Office how giving a statement of reasons would require the disclosure of information contained in a record that is so exempt.

It is also important to note that section 42(a)(i) does not provide for the exemption of all records held by the courts. The section provides that the Act does not apply to a record held by the courts and relating to a court or to proceedings in a court other than (at relevant part) a record relating to the general administration of the courts or the offices of the courts. Therefore, if the provision of a statement of reasons necessitated the disclosure of information contained in a record relating only to the general administration of the courts, the Courts Service could not refuse to provide such a statement by virtue of section 10(2).

In summary, therefore, the Courts Service cannot refuse to provide a statement of reasons solely because the acts for which reasons are sought relate to records that are exempt under section 42(a)(i). That being said, it seems to me that the fundamental difficulty facing the applicant in her efforts to obtain reasons for the various acts identified in her original application is that many of the acts identified are not acts of the Courts Service, to whom the application was made, but are, instead, acts of the courts.

The Courts Service provides administrative and support services to the courts. Its functions include the management of the courts, the provision of support services for judges, the provision of information on the courts system to the public, the provision, management and maintenance of court buildings, and the provision of facilities for users of the courts. It does not have a judicial function. According to the Courts Service, court registrars are employed by it as civil servants of the State in accordance with section 23 of the Courts Service Act 1998. In addition, each registrar of the High Court is a principal officer within the meaning of section 3(3) of the Courts Officers Act 1926. It stated that a court registrar can be within the remit of either the Courts Service or the courts, depending on whether they are dealing with administrative or court matters. When registrars are dealing with court matters and records, they are under the direction of the courts. 

In this case, the Courts Service argued that the acts identified at parts 1 to 7 and the first half of part 12 are acts of the courts and not acts of the Courts Service. Having carefully considered each part and having regard to the explanation provided by the Courts Service of its functions and the role and functions of court registrars, I agree. Accordingly, I find that the Courts Service was not required to provide statements of reasons for the acts outlined in parts 1 to 7 or the first half of part 12 of the application on the ground that they are not acts of the Courts Service

This leaves parts 8, 9 and 10 to be considered (as outlined above, I have excluded part 11 and the second half of part 12 as they are requests for information as opposed to applications for statements of reasons). At the relevant parts, the applicant sought reasons for the following:

(8)   why a member of staff in the Supreme Court Office refused to accept books of appeal she presented on a specified date,
(9)   why the same staff member advised her that she could not include video evidence that had been used in High Court proceedings
(10) why she had not been given a date for appearance before the Supreme Court following certain directions given by the Court in 2017

To be entitled to a statement of reasons for an act of a public body, the person seeking the statement of reasons must be affected by the act and have a material interest in a matter affected by the act or to which it relates.

Subsection (5) of section 10 provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates:

"if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

Under subsection (13), benefit is defined as including any advantage to the person, or the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

This Office considers that the applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of an FOI body, i.e. the applicant bears the burden of showing that he or she has a material interest in the matter. 

There are many acts/decisions taken by FOI bodies where section 10 has no relevance. The Oireachtas could not have intended that FOI bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the body. There will be many instances where a number of secondary actions/decision are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, section 10 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision.

Taking section 10 as a whole, this Office considers that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 10 does not apply to that act.

Let me consider the act identified at part 8 as an example. If the staff member wrongly refused to accept the books of appeal and as a consequence, the Court ultimately dismissed the applicant's appeal, section 10 would give the applicant a right to be given reasons why she suffered the adverse effect, i.e. a statement of reasons as to why theCourt dismissed her appealas this is the act that withheld a benefit from the applicant. A statement of reasons that meets the requirements of section 10 would allow the applicant to see that the adverse effect resulted from the failure of the staff member to properly accept the books of appeal. However, section 10 would not require the Courts Service to give reasons why the staff member failed to properly accept the books of appeal, whether due to lack of knowledge, lack of experience, genuine misunderstanding or other such reasons. Analysis of why or whether maladministration may have occurred lies in the province of the Ombudsman, not the Information Commissioner.

In this case, the applicant has not explained how the alleged refusal of the staff member concerned to accept the books of appeal she presented on a specific date could reasonably be regarded as an act that conferred on or withheld from the applicant a benefit. As such, I find that the applicant has not shown that she has a material interest in a matter affected by that act and that she is not entitled to a statement of reasons for the act identified at part 8 of the application. I also find, for the same reasons, that she is not entitled to a statement of reasons for the acts identified at parts 9 and 10.

In conclusion, I find that the Courts Service was justified in finding that it was not required, under the provisions of section 10 of the FOI Act, to provide statements of reasons for various acts relating to the applicant's interactions with the courts and/or the Courts Service on the ground that she is not entitled to the statements of reasons sought.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Courts Service. 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision.  In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.  

Stephen Rafferty 
Senior Investigator