Whether the Council was justified in its decision to refuse access to a transcript of a court judgment on the basis that section 42(a) provides that the FOI Act does not apply to records held by the courts

18/10/2018

Background

On 26 February 2018, the applicant made an FOI request to the Council for records concerning legal cases taken by landowners against the Council as a result of verge trimming/hedge cutting since January 2016. The applicant said that he was seeking the records which were previously released by the Council in response to FOI reference number 785, as referred to on the Council's FOI disclosure log. On 7 March 2018, the Council informed the applicant that one legal case was taken in the Circuit Court against the Council as a result of verge cutting/hedge trimming since 1 January 2016. 

On 14 March 2018, the applicant made a further FOI request to the Council. In his request the applicant stated: 

"I would like to get details about the Circuit Court case in order to understand the points of law involved. A written judgment would probably be sufficient if there was one, but it seems that written judgments are not always issued in Circuit Court cases. Alternatively, some report or analysis of the case which sets out the issues."

On 11 April 2018, the Council refused access to a transcript of the court judgment under section 42(a)(i) of the FOI Act on the basis that the Act does not apply to records held by the courts. The Council refused access to "some report or analysis of the case which sets out the issues" under section 15(1)(a) of the Act on the basis that this record does not exist. The applicant requested an internal review of the Council's decision. On 18 May 2018, the Council affirmed its original decision. 

On 21 May 2018, the applicant wrote to the Council and requested details of the case in order to follow up with the courts. The Council provided the requested details. On 6 June 2018, the applicant requested a copy of the judgment from Roscommon Court Office. Roscommon Court Office informed the applicant that there was no written judgment in the case and that the Council, as a party to the proceedings, requested a copy of the transcript of the Digital Audio Recording and obtained same. On 13 June 2018, the applicant asked Roscommon Court Office whether the court holds a copy of this transcript. The Courts Office did not confirm whether the court holds a copy transcript. It informed the applicant that a party who wishes to obtain a transcript from the court must make an application to the judge. On 13 July 2018, the applicant applied to this Office for a review of the Council's decision. Both the applicant and the Council made submissions during the course of the review. 

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Council, to correspondence between the Council and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014. 

Scope of Review

There was no written judgment in this case. However, instead of refusing access to a written judgment under section 15(1)(a) on the basis that no such record exists, the Council refused access to the second part of the applicant's request i.e. a report or analysis of the case under section 15(1)(a). I have examined the transcript closely and I am satisfied that it contains a report or analysis of the case which sets out the issues. It is possible that the Council holds further records which fall within the second part of the applicant's request. However, the applicant-�s request was for -�some report or analysis of the case-� as an alternative to a written judgment. The applicant has not requested access to all records held relating to this matter. The transcript contains analysis of the case and in my view this record fully meets the applicant's request. The scope of this review is, therefore, confined to whether the Council was justified in its decision to refuse access to the transcript of the judgment under section 42(a)(i) of the FOI Act.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters. Section 13(4) of the FOI Act provides that, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act). 

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Therefore, in this case, the onus is on the Council to justify its decision.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. 

Analysis and Findings

Section 42(a) 
Section 42(a) provides that the FOI Act does not apply to certain records held by the courts or a defence service tribunal relating to a court or such a tribunal, or to proceedings in a court or such a tribunal. However, the exclusion from the application of the FOI Act provided for in section 42(a) does not apply (or, in other words, the Act does apply): (I) where the record relates to proceedings in a court or such a tribunal held in public, but the record was not created by the court or tribunal and disclosure of the record to the general public is not prohibited by the court or tribunal; (II) where the record relates to the general administration of the courts, the offices of the courts, such a tribunal or any offices of such a tribunal.

Council's Submissions
In its submissions to this Office, the Council states that it was advised by the Courts Service that all records created in relation to court proceedings are "court records" and section 42(a)(i) precludes the release of court records other than a record relating to the general administration of the courts. It also states that it was advised that S.I. No. 100 of 2013: Circuit Court Rules (Recording of Proceedings) set out the procedure to be followed when seeking access to any recording of Circuit Court proceedings. A request for access to a recording of proceedings must be made by formal application to the trial judge in the proceedings concerned and on notice to the other parties to the proceedings. The Council also submits that its decision to refuse access to the transcript under section 42(a)(i) of the Act appears to be supported by the decision of the Information Commissioner in case 000384 (Mr X. and the Courts Service) and by the decision of the High Court in Minister for Justice, Equality and Law Reform and the Courts Service v. The Information Commissioner [2002] IEHC 35. In that case Finnegan J. noted that:

"The decision of the Information Commissioner was made on 13 September, 2000. These proceedings are appeals against the said decision. The involvement of the Courts Service arises in that as a result of the Courts Services Act, 1998 the Courts Service and not the Minister has custody of the relevant documents." 

In case 000384 (Mr X. and the Courts Service) and in case 99003 (Mr. X and the Department of Justice, Equality and Law Reform) which gave rise to Finnegan J's judgment detailed above, the records sought were held by the courts whereas in this case, the record sought is held by the Council. 

In my view, the facts in the present case are closer to those in this Office's decision in case 170458 (Mr. Y and the Department of Public Expenditure and Reform). In case 170458, which is currently under appeal to the High Court, the records at issue comprised requests from the DPP to the Department to pay increased fees in particular court cases and the subsequent responses issued by the Department. Section 42(f) provides that the Act does not apply to a record held or created by the DPP, other than a record relating to general administration. The Department argued that the relevant records are captured by section 42(f) of the FOI Act as (i) they comprise either records that were created by the DPP or were sent to, and are now held by, the DPP, and (ii) they did not relate to general administration. In his decision the Senior Investigator stated:

"I am satisfied that those records or parts of records comprising the Department's responses to requests from the DPP to pay increased fees are not captured by section 42(f). Those records were not created by the DPP and are clearly held by the Department, not by the DPP. The fact that the DPP may also hold exact copes of those responses does not mean that the copies held by the Department are deemed to be held by the DPP."

In this case, I understand that the transcript of the court judgment was purchased directly by the Council from a transcription service company, having obtained permission from the court to do so. The Court Office did not confirm to the applicant whether the court also holds a copy of the transcript. However, the fact that the court may also hold a copy of the transcript does not mean that the copy held by the Council is deemed to be held by the court. Section 42(a)(i) provides that the Act does not apply to a record held by the courts. In my view, that exclusion does not extend to copies of such records held by other public bodies. I find therefore, that the Council was not justified in refusing access to the transcript under section 42(a)(i) of the Act. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act, I hereby annul the decision of the Council. I find that the Council was not justified in refusing access to the transcript under section 42(a)(i) of the Act and I direct release of this record to the applicant.

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.

Elizabeth Dolan
Senior Investigator