Whether the Department was justified, under section 37 of the FOI Act, in its decision to refuse the applicant's request for records of representations made to the Minister for Justice and Equality in relation to any judicial appointments for a specified period

14/02/2019

Background

On 9 July 2018 the applicant sought access to copies of any representations made to the Minister for Justice from January 2014 to the date of his request in relation to any judicial appointments. In its decision of 11 September 2018 the Department refused access to 85 records it had identified as falling within the scope of the request under sections 35 and 37 of the FOI Act. The applicant sought an internal review of that decision following which the Department affirmed its refusal of the request.

On 3 October 2018, the applicant sought a review by this Office of the Department's decision. During the course of the review, the Department explained that it had omitted a number of records form the schedule originally provided to the applicant due to an administrative error and it subsequently provided both this Office and the applicant with an updated schedule, containing details of 90 records to which access was refused.

I have decided to conclude this review by issuing a binding decision on the matter. In conducting the review, I have had regard to the correspondence between the applicant and the Department as set out above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the nature and contents of the records at issue. 
 

Scope of Review

This review is concerned solely with whether the Department was justified in its decision to refuse the applicant's request for records of representations made to the Minister for Justice from January 2014 to the date of his request in relation to judicial appointments under sections 35 and 37 of the FOI Act.

Analysis and Findings

The Department refused the request under sections 35 and 37 of the FOI Act. As I consider section 37 to be of most relevance in this case, I will address that exemption in the first instance. 

Section 37(1) provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. The Act defines personal information as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual. 

All of the records at issue in this case relate to expressions of interest made by serving judges for certain judicial appointments. The expressions of interest were made to the President of the relevant court, the Attorney General, the Taoiseach, or the Minister for Justice and Equality (the Minister). In all cases where the expressions of interest were made to a party or parties other than the Minister, the relevant correspondence was forwarded to the Minister.

In the vast majority of the cases concerned, reference is made to a guidance note/protocol issued by the then Chief Justice in October 2013 regarding the process to be followed by serving judges who wish to be considered for appointment to alternative judicial office. In addition to the names of the judges, the records contain varying degrees of other personal information that one might expect to find in a curriculum vitae, including information relating to the qualifications and experience of the individuals. Having examined the records at issue, I am satisfied that their disclosure would involve the disclosure of personal information relating to the judges concerned and that section 37(1) applies to the records.  
 
Section 37 contains other provisions that serve to disapply section 37(1), namely subsections (2) and (5). I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides for the release of information to which section 37(1) applies where (a) the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned or (b) the grant of the request would benefit the individuals concerned. I am satisfied that subsection (b) does not apply.

Section 37(5)(a) - the Public Interest

On the question of whether subsection (a) applies, the FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. Indeed, under section 11(3), in performing any function under the Act, public bodies must have regard to 

the need to achieve greater openness in its activities and to promote adherence by them to the principle of transparency in government and public affairs, 
the need to strengthen the accountability and improve the quality of decision making of public bodies, and
the need to inform scrutiny, discussion, comment and review by the public of the activities of public bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of public bodies.

On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "the right to privacy"). It is also worth noting that the right to privacy has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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 submission to this Office, the Department explained that judicial appointments are made by the President acting on the advice of the Government in accordance with Articles 13.9 and 35.1 of the Constitution. It stated that judicial appointments for solicitors and barristers are dealt with through the Judicial Appointments Advisory Board (JAAB) but that the JAAB process does not cover the elevation of serving judges to higher courts. Rather, it is open to serving judges at any time to express interest in elevation to a particular court, usually to the Attorney General, but on occasion letters are written directly to the Minister and/or the Taoiseach. It stated that all expressions of interest are forwarded to the Minister for consideration. It added that all such expressions of interest are kept on file and may be considered multiple times by Government for subsequent relevant judicial appointments, unless the judge has been elevated to a higher court or the application is withdrawn.  

The question I must consider is whether the public interest in the promotion of transparency and accountability concerning the role of the Minister in relation to the appointment of serving members of the judiciary to higher judicial office is sufficiently strong to outweigh, on balance, the public interest in protecting the privacy rights of the individuals concerned.  I do not believe that it is in this case. It seems to me that the extent to which the release of the records at issue would give an insight into the role of the Department or the consideration by Government of the candidates for judicial appointment is extremely limited. 

In his correspondence with the Department and with this Office, the applicant referred to a previous decision made by this Office, in Case No 100263 -The Sunday Times and the Department of Justice and Equality, wherein the Department was directed to release the names of the judges on whose behalf representations had been made prior to their appointment on the ground that the public interest served by the disclosure of the information outweighed the public interest in upholding the privacy rights of the judges concerned.

I consider the circumstances in this case to be very different to those arising in Case 100263. All of the expressions of interest in this case were made by the judges themselves and not by third parties. It is noteworthy that any such expressions of interest made to parties other than the Minister, such as the Attorney General or the Taoiseach, were forwarded to the Minister for consideration in accordance with the agreed protocol.

Case 100263, on the other hand, involved third parties making political representations on behalf of non-serving members of the judiciary who were subsequently appointed. It is also noteworthy that in Case 100263, the Senior Investigator noted that there was a particular public interest in knowing whether serving judges had their candidacies supported by public representatives and, if so, by which public representatives (and from which political party, if any). He found that this public interest carried even greater weight in circumstances in which the Government, in advising the President in relation to the appointment of persons to judicial office, is not confined in its advice to the particular names recommended as suitable by the JAAB or to naming only persons who have applied to the JAAB whether or not such persons have been recommended by the Board. No such circumstances arise in this case.

Having carefully considered the matter, I find that the public interest in the release of the records at issue does not, on balance, outweigh the privacy rights of the individuals to whom the records relate. I find that section 37(5)(a) does not apply.    

Having found that section 37(1) applies to the information, it is not necessary for me to consider the application of section 35.  

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse the applicant's request for records of representations made to the Minister for Justice from January 2014 to the date of his request in relation to judicial appointments under section 37 of the FOI Act.

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