Whether the CSSO was justified in refusing access to records of a case that was referred from the Irish High Court to the Court of Justice of the European Union (CJEU) under section 42(f) of the FOI Act

4 September 2020

Background

In a request dated 5 February 2020, the applicant sought access to copies of records for case C-244/13 in which the Second Chamber of the European Court of Justice/CJEU delivered judgement on 10 July 2014.  In a decision dated 14 February 2020, the CSSO refused the request under section 42(f) of the FOI Act on the ground that the records sought are excluded from the scope of the FOI Act. On 5 March 2020, the applicant sought an internal review of that decision, following which the CSSO affirmed its decision. On 29 June 2020, the applicant applied to this Office for a review of the CSSO’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant and the CSSO as set out above, and the communications between my Office and both the applicant and the CSSO on the matter.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the CSSO was justified in refusing access to the records sought by the applicant in his request dated 5 February 2020 under section 42(f) of the FOI Act.

Analysis and Findings

Section 42(f) provides that the Act does not apply to a record held or created by the Office of the Attorney General other than a record relating to general administration. The CSSO is a constituent office of the Office of the Attorney General.

It is clear from his application to this Office that the applicant accepts that the records he is seeking do not relate to the general administration of the CSSO. The applicant contends that it would be contrary to EU law if Ireland, the CSSO or this Office were to invoke national law, since EU law has primacy over any conflicting national law. While the applicant does not refer to any specific EU law or rules, the role of the Information Commissioner in this matter is confined to reviewing the CSSO’s decision that the FOI Act does not apply to the records at issue by virtue of section 42(f) of the Act. 

In its submission to this Office, the CSSO said that the records sought by the applicant relate to a case which concerned a referral from the Irish High Court to the Court of Justice of the European Union (CJEU). It said the contents of the case file are in the main correspondence between the State’s legal team and the instructing civil servants and all these records relate to the legal arguments to be made to the Court of Justice. The CSSO said that the records requested are those of a legal matter which forms the core business of the Office and that the records could not be considered a matter of general administration. In response to the applicant’s reference to the primacy of EU law over national law, the CSSO stated that Freedom of Information requests are not a matter of EU competence and that every member state has its own domestic regime. It said that an Irish public body must comply with Irish law.

The question I must consider in this case is whether the records sought by the applicant relate to “general administration”. While the FOI Act is silent on the meaning of general administration, this Office considers that it refers to records which concern the management of the Office such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like.  I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, such as advising on legal matters. Having regard to the nature of the records sought by the applicant, I find that section 42(f) of the Act applies to the records he requested. Accordingly, I affirm the CSSO’s decision to refuse to release the records at issue.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the CSSO’s decision to refuse the applicant’s request under section 42(f) of the 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