Whether the Judicial Council was justified in refusing access to a copy of the slides used for ethics training for new judges as part of their induction programme on the basis of various sections of the FOI Act 

21 December 2022

Background

In a request dated 17 September 2021, the applicant submitted a request to the Judicial Council wherein he sought access to the following:

1. a copy of the slides/presentations used for ethics training for new judges as part of their induction programme;
2. a copy of the slides/presentations used for the vulnerable witnesses course for judges as part of the judgecraft programme;
3. a copy of the slides/presentations used for the unconscious bias course for judges as part of the judgecraft programme

On 15 October 2021, the Council issued its decision. It refused access to parts (b) and (c) of the applicant-�s request on the basis that the two training courses referred to were interactive courses made up entirely of workshops and role-play and the records sought did not exist. However, it provided an outline of one of the training programmes for the applicant-�s information outside of the FOI framework. It refused access to the one record coming within the scope of the first part of the request. It said it was refusing access to the record on the basis of the constitutionally protected principle of judicial independence as well as Article 47 of the Charter of Fundamental Rights of the European Union which enshrines this principle. In addition, the Council indicated that it was also refusing access on the basis of section 30(1)(b) of the FOI Act. Nevertheless, it informed the applicant that the content of the training session was drawn from a publicly available document, namely -�The Bangalore Principles of Judicial Conduct-� elaborated by the United Nations Office on Drugs and Crime and it provided the applicant with a link to those Principles. 

On 18 October 2021, the applicant sought an internal review of the decision to refuse the first part of his request on the basis of section 30(1)(b). On 8 November 2021 the Council affirmed its original decision. The internal reviewer also stated that the provisions of section 35, relating to information provided in confidence, and section 42(a) relating to records held by the Courts, were of relevance in the case. Notwithstanding that position, the Council also indicated that it considered that it did not hold the record concerned within the meaning of section 11(1) of the FOI Act.

On 6 December 2021, the applicant sought a review by this Office of the Council-�s decision.  In the course of the review by this Office, the Investigator invited a submission from Judge Gearty who had created the presentation for the training course in ethics in her capacity as Director of Judicial Studies. Judge Gearty indicated that she objected to the release of the record for the reasons discussed below. 

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 submissions made by the applicant in his application for review, to the submissions made by the Council in support of its decision, and to the submissions made by Judge Gearty. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In its very lengthy and detailed submissions, the Council argued that it does not hold the record at issue for the purposes of the FOI Act, and even if it does, the record is exempt from release under sections 30(1)(b), 35(1), 37(1) in part, and 42(a)(i).

Accordingly, the scope of this review is concerned with whether the Council was justified in refusing to grant access to the presentation on ethics training provided to new judges as part of their induction programme on the ground that it does not hold the record in question for the purposes of the FOI Act, or if it does, on the ground that the record is exempt from release pursuant to the various provisions of the Act identified above. 

Preliminary Matters

As I have outlined above, Judge Gearty made a submission to this Office wherein she argued that the record at issue should not be released. She did not identify any specific exemptions in the Act as serving to support the Council-�s refusal to grant access to the record. Instead, she set out her arguments under the headings of -�confidentiality-�, -�International Best Practice and access to judicial training materials from other institutions-�, and -�Public Interest-�. I will address those arguments in so far as they fall to be addressed when considering the applicability of the provisions of the Act to the record.

Analysis and Findings

Judicial Independence

The Council made detailed submissions in arguing that this Office must interpret and apply all of the provisions of the Act in a manner that is constitutional and in a manner that does not undermine the principle of judicial independence. Its essential argument is that documents produced by judges for judicial training are judicial work product and the property of the judge who prepared same and who, under the Constitution, enjoys independence under the separation of powers, i.e. that judicial training is an integral aspect of judicial independence.

I fully accept that this Office must interpret and apply all of the provisions of the Act in a manner that is constitutional and in a manner that does not undermine the principle of judicial independence.

On the matter of judicial training being an integral aspect of judicial independence, the Council argued that the -�Declaration of Judicial Training Principles-� (the Declaration) makes it clear that it is. I note that the Declaration comprises a set of principles adopted by the members of the International Organisation for Judicial Training (the IOJT). The IOJT describes itself as a volunteer, non-profit organisation, established in 2002, in order to promote the rule of law by supporting the work of judicial education institutions around the world.

The Council argued that, in accordance with the principle of judicial independence, and as internationally-recognised;

1. The design, content and delivery of judicial training are exclusively for national institutions responsible for judicial training to determine;

2. Training should primarily be delivered by judges who have been previously trained for this purpose;

3. The independence of the judiciary requires that training of the judiciary ought to be judge-led and where possible judge-delivered;

4. Judicial training is by judges for judges and is a central component of judicial independence;

5. As part of the respect for that independence the judiciary ought to be able to keep their training materials private and confidential;

6. Member States must ensure that judges have the resources to ensure the fulfilment of the aims and objectives of judicial training, including the means to ensure that such training can be delivered confidentially.

The Council also referenced the Judicial Training Principles of the European Judicial Training Network and the Commentary on the Bangalore Principles of Judicial Conduct. Judge Gearty also referenced the Commentary on the Bangalore Principles of Judicial Conduct in support of her arguments that the record at issue should not be released.

I have examined all three documents referenced. Having done so, it seems to me that none of them suggest that the disclosure of judicial training materials would undermine judicial independence. Moreover, given that the issue under consideration in this review is whether a right of access exists to the training presentation in question, it seems to me that of the six arguments made by the Council as outlined above, the only argument of relevance in this case is the argument that the judiciary ought to be able to keep their training materials private and confidential. In support of that argument, the Council referenced Principle 10 of the Declaration and its accompanying commentary. Principle 10 provides that;

-�Judicial training should reflect best practices in professional and adult training program design. It should employ a wide range of up-to-date methodologies.-�

The Council noted that the commentary accompanying principle 10 provides as follows:

-�The training should be trainee-oriented. It is vital that judges have a confidential forum at judicial training seminars, to be able to exchange ideas freely and develop skills in a safe space.-�

It argued that the commentary in question reflects the importance of confidentiality in judicial training. In my view, the commentary simply suggests that a confidential forum for training should be provided. I do not accept that it extends to suggesting that, as part of the respect for judicial independence, the judiciary ought to be able to keep their training materials private and confidential.

While I accept that that judicial training is supportive of judicial independence, it does not follow, in my view, that the disclosure of judicial training materials would necessarily undermine judicial independence. It seems to me that the disclosure of judicial training materials could undermine judicial independence only if the particular disclosure involved or resulted in actual, potential or perceived external influence on the judiciary in the carrying out of their judicial functions. Having carefully considered the matter, I find that the disclosure of the record at issue in this case would not undermine the principle of judicial independence.

Does the Council hold the record?

Section 11(1) of the Act provides for a right of access to any record held by an FOI body. Accordingly, the first question I must consider is whether the Council holds the record at issue for the purposes of the FOI Act. It is not in dispute that the Council has in its possession the training presentation sought. Nevertheless, while the Act does not define -�held-�, it is well settled that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. 

The Drogheda Review Case

The Supreme Court considered the meaning of -�held-� for the purposes of the Act inMinister for Health v Information Commissioner [2019] IESC 40(commonly known as the Drogheda Review case). In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, former High Court judge Justice T.C. Smyth, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda.

Following the completion of his work, the reviewer, who had set the terms upon which he obtained the relevant information, sealed the transcript with other records and deposited them with the Department of Health for safekeeping. The reviewer stipulated that the boxes of records were not to be disclosed or opened in any circumstances except by court order for discovery, of which he wished to be notified. The issue before the Court was whether the records were held by the Department of Health for the purposes of the FOI Act.

In her judgment in the case, Finlay Geoghegan J. accepted that the equivalent provision of the Freedom of Information Act, 1997 (the Act of 1997), which provides for the right of access to records held by public bodies (section 6(1)), gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record -�held-� by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be answered are distinct.

On the meaning of held, Finlay Geoghegan J. found that for a record to be held within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

Section 11(1) of the Act of 2014 is the equivalent of section 6(1) of the Act of 1997.  As such, having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that for the record sought in this case to be deemed to be held by the Council, the Council must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

The Council-�s Submission

In its submissions, the Council argued that the record at issue cannot be regarded as being -�held-� by the Council within the meaning of that concept in Section 11(1), as interpreted by reference to the Drogheda Review judgment. It argued that the test set out in the Drogheda Review case is not satisfied in this case.

By way of background, the Council said the record was prepared by a judge of the High Court, Judge Gearty, in her capacity as Director of Judicial Studies, for the purpose of providing a training course in ethics. It said the record was not disseminated to judicial attendees of the training in advance and that Judge Gearty had specified that it was not to be shared by judges with other judges who had not yet attended the training. It said the record came into the possession of staff members of the Council for the limited purposes of provision of administrative assistance to Judge Gearty if any was required, safe-keeping, and attendance purposes. 

Among other things, it said the record at issue is not made freely available to all those who comprise the Council. It said the practice is that the judges comprising the Council do not have access to the slides for ethics training in advance of the ethics training seminar. It argued, therefore, that the record is neither possessed nor accessed by the members comprising the Council generally and instead, it is held by the individual judge who created the record, and by those judges who have completed training. It said the Record is not circulated freely as between members of the Council or made freely available to all members of the Council.

The Council further argued that upon conclusion of the training course, it is not entitled to generally access the information in the record. It said the record was, as regards the Council, applicable to only one training course and that it was tailored to those attending. It added that given the position of Judge Gearty as regards ownership and release and given that the limited purposes of sharing the record with Council staff was for safe-keeping and to note attendance, the record was shared on an extremely limited basis with the Council. It said that, at this time, the Council can seek access to the record only having first obtained the consent of Judge Gearty. It argued that the record for all purposes now has the status of being sealed for use only by Judge Gearty or her successor. It further argued that even were it determined that the Council had access in limited circumstances at a point in time and for a limited purpose, it does not follow that the access continues indefinitely. It argued that any such access ended upon the extraction of the data previously referred to. It argued that the Council does not therefore have a general entitlement to access the record for its own purposes or for the purpose of considering publication.

The Council also took the opportunity to comment on a previous decision of this Office in Case OIC-104934;Mr. Mark Tighe and the Judicial Council(available on our website athttps://www.oic.ie/decisions/mr.-mark-tighe-and-the-ju/index.xml).  In that case, this Office found that for the purposes of the FOI Act, the Council held a transcript of an interview which was carried out in the course of an investigation by former Chief Justice Susan Denham into the attendance by Judge Seamus Woulfe at an event in Clifden, Co. Galway. 

In addition to arguing that our decision in Case OIC-104934 was flawed, the Council also argued that a distinction can be drawn with the current case as the record at issue here was not disseminated amongst members of the Council, nor was it considered by the Board of the Council. In addition, the Council argued that unlike the record at issue in case OIC-104934, there is no suggestion in the current case that the Board of the Council considered the record. 

Finally, in response to a point raised by the Investigator in her request for submissions, the Council added that while it was correct that the slides have the Council logo affixed to the front page of the power point presentation, this does not mean that the Council was in lawful possession of the relevant record for the purposes of its business and functions and was also entitled to access the information in the record. It said the use of the Council logo was a decision for Judge Gearty and that the Council is a stranger to her decision to use its logo on her records. It said the use by a third party of a body's logo cannot go so far as mean that the body is entitled to access that third party's information.

Judge Gearty-�s Submission

Judge Gearty did not expressly present any arguments as to whether or not the record in the possession of the Council can be deemed to be held by the Council for the purposes of the FOI Act.  However, in the context of arguing that the presentation was confidential, she argued that the only reason the Council had access to the record was to ensure that there was a separate record of the material in case she was not available for future training and that -�it was not for the use of the Council or any of its officers-�. She said that the slides now bear the written instruction not to share the material without her permission.

My Analysis and Conclusions

As I have outlined above, the test outlined by Finlay Geoghegan J in the Drogheda Review case for determining when a record can be deemed to be held by a public body for the purposes of the Act comprises two elements;

• the body must be in lawful possession of the record in connection with, or for the purposes of, its business or functions,and
• it must be entitled to access the information in the record.  

It is important to note that both elements of the test must be met. Turning to the first element, I note that at no point in its extensive submissions has the Council suggested that it was not in lawful possession of the record at issue. On the matter of whether it is in possession of the recordin connection with, or for the purposes of, its business or functions, I note that the Council accepts that -�[t]he Record has come into the possession of staff members of the Council for the strictly limited purpose of provision of administrative assistance to Ms Justice Gearty-�. This suggests to me that the Council accepts that the provision of administrative assistance to Judge Gearty is, indeed, a function of the Council. In my view, the Council being in possession of the record is entirely in keeping with its functions as described in section 7(1) of the Judicial Council Act 2019. I note that, among other things, those functions include promoting and maintaining continuing education of judges (section 7(1)(d)). Indeed, I note that in its arguments in support of its refusal of the request under section 30(1)(b) of the Act, the Council argued that the general function of the Council that could reasonably be expected to be affected by release of the record was -�that of judicial training which is a statutory function of the Council as conferred by Section 7(1)(d)-�.

I would add that the fact that the record is not circulated freely as between members of the Council or made freely available to all members of the Council has no bearing, in my view, on whether or not the Council can be deemed to be in lawful possession of the record in connection with, or for the purposes of, its business or functions.

In addition, I understand the essence of the Council-�s argument to be that it was provided with the record for limited administrative reasons and these administrative functions are now complete. The fact that its function in respect of the record may since concluded does not, in my view, mean that it is not in lawful possession of the record in connection with, or for the purposes of, its business or functions. Indeed, I consider that are many examples of situations where public bodies hold records associated with a function which may be complete, for example the approval of a grant which has issued, and I cannot accept the Council-�s reasoning which would lead to a scenario where such records were deemed not to be held by the public body concerned. I am satisfied that the first element of the test outlined by Finlay Geoghegan J is satisfied.

With regard to the second element of the test, the Council essentially argued that the circumstances arising in this case are closely aligned to those arising in the Drogheda Review case. It argued that the record for all purposes now has the status of being sealed for use only by Judge Gearty or her successor and that it is not entitled to generally access the information in the record.

I fail to see how the Council can reasonably argue that it was not entitled to access the information in the record. As the Council indicated in its submission, while it considered its role in relation to the record to be limited to administrative support, it is clear that this extended to receipt of the record and access for the purposes of data collection. Moreover, despite the Council-�s assertions to the contrary, I am satisfied that this case is entirely distinguishable from the Drogheda Review case. In that case, the Supreme Court accepted that the reviewer had properly imposed appropriate restrictions on access to the records and that the Department held the records at issue for safe-keeping purposes only. The Department had no role or function in relation to the records in question. As I have explained above, I am satisfied that the Council is in possession of the record at issue in this case in connection with, and for the purposes of, its functions, regardless of how limited that role might be. I am also satisfied that the Council was entitled to the access the information contained in the record.

In the circumstances, I find that both elements to the test outlined by Finlay Geoghegan J have been met and I find that the Council holds the record at issue for the purposes of the FOI Act.

Section 42(a)(i)

Having found that the Council holds the record at issue for the purposes of the Act, I must now proceed to consider whether any of the exemptions cited by the Council serve to support its refusal of the request. As section 42 serves to exclude certain records from the scope of the FOI Act, I have considered the applicability of this provision to the record at issue first. 

Section 42(a)(i) provides that, subject to two exceptions, the FOI Act does not apply to a record held by the courts that relate to a court or to proceedings in a court. The Council-�s reliance on section 42(a)(i) is based on its argument that it does not hold the record and that it is, instead, held by a court, namely Judge Gearty. As I have found that the record is held by the Council for the purposes of the Act, I am satisfied that section 42(a)(i) does not apply.

The Council also refused access to the record at issue under sections 30(1)(b) and 35(1) and part of the record on the basis of section 37(1). I propose to consider the applicability of section 35(1)(a) in the first instance as I consider it to be of most relevance in this case.

Section 35(1)(a)

Section 35(1)(a) provides for the mandatory refusal of a request where;

1. the record concerned contains information given to an FOI body in confidence, and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.

The record at issue in this case was prepared by Judge Gearty, a member of the High Court. I am satisfied that the exclusion in section 35(2) does not apply in this case, as the Judge is not a member of the staff of a public body or a service provider.

In order for section 35(1)(a) to apply, it is necessary to show the following:

• that the information was given to an FOI body in confidence and,
• that the information was given on the understanding that it would be treated by the FOI body as confidential and,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• that it is of importance to the body that such further similar information should continue to be given to the body.

All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act.

The Council argued that Judge Gearty, as creator of the record and facilitator of the training session on ethical issues, provided the record to the Council with the expectation of confidence and on the understanding that it would be treated by the Council as confidential. 

It argued that she had specifically requested that the presentation not be shared in advance with participants of the course, nor subsequently be shared with other members of the judiciary beyond those who had participated in the training session.  The Council further argued that this expectation of confidentiality is further bolstered by the constitutionally guaranteed principle of judicial independence. 

The Council further argued that regard should also be given to the limited purpose for which the record was shared with it; namely, the provision of administrative assistance, and argued that a duty of confidence may arise where information was supplied for a particular purpose.  In support of its position, it has referred to the comments of Costello J. inHouse of Spring Gardens Ltd v Point Blank Ltd[1984] IR 611 at 663, when he said,

-�if the informant himself has expended skill, time and labour on compiling the information, then he can reasonably regard it as of value and he can reasonably consider that he is conferring on its recipient a benefit. If this benefit is conferred for a specific purpose then an obligation may be imposed to use it for that purpose and for no other purpose-�.

In the current case, the Council argued that it there was a clear understanding of confidentiality given that it was provided with the record solely for the limited purpose of administrative support. 

The Council further argued that release of the record at issue would prejudice the future giving of information of importance to the Council.  More particularly, it argued that Judge Gearty would be reluctant to share any future, similar, material with it if the current presentation were to be released. It said judges require administrative support from the Council and if it were not able to provide a confidential means of receiving information relating to judicial training then its capacity to receive and utilise such materials would be impaired. Further, the Council argued that disclosure of the information in the record would negatively affect its ability to collect data on judicial participation in training programmes.  In addition, the Council has argued that if information in the record were to be released it would deter those engaged in judicial training in other jurisdictions from sharing information with those preparing training programmes for members of the Irish judiciary. 

In addition, as set out above, Judge Gearty also made a submission to this Office. Judge Gearty argued that as Director of Judicial Studies with the Council she created the record at issue in this case for the sole purpose of judicial training in the area of ethics.  Judge Gearty further argued that it was understood by all participants in the training session that the slides were confidential and were not to be shared without her express permission.  Judge Gearty added that this understanding of confidentiality was particularly important as it ensured that participants of future training sessions did not have access to her presentation in advance, thereby potentially inhibiting a candid exchange of views in such sessions. 

Judge Gearty also provided details on the wider international best practice with regard to judicial training which favours confidentiality. In addition, Judge Gearty indicated that certain of the slides in the presentation were designed following discussions with her counterparts in the Judicial College in England and Wales and they had not provided permission for these slides to be published. 

The essence of the Council-�s argument is that the information contained in the presentation was provided by Judge Gearty to it in confidence and, if released, would inhibit the future provision of such information. I should say at this stage that having examined the contents of the record at issue, they do not appear to me to be of an inherently confidential nature. In my view, the presentation contains precisely the type of information that one might expect to find in a training presentation for judges on ethics and judicial conduct. Nevertheless, in the case ofThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case"), Macken J. stated that what is protected under the equivalent provision of what is now section 35(1)(a) "stems from the circumstances in which the material is given, and not from the nature of the material itself".

Thus the information itself does not necessarily have to have to be private, secret or confidential. In the Rotunda Hospital case, Macken J. stated that the exemption -�does not impose an obligation that the information in question should have the characteristic of being -�confidential information-� or -�private and secret-� or subject to a -�duty of confidence-� ... or to have any so-called necessary -�quality of confidence-� -� other than as to the circumstances in which it was imparted and received-�. Macken J stated that it may be that the information given is, in fact, secret, but the section does not require it to be so. Thus, it is the circumstances in which the information was imparted and received that should be considered.

Having considered the matter, I accept that when providing the presentation to the Council, both Judge Gearty and the Council considered that such information was being provided in confidence. In particular, I consider the request not to share the presentation in advance with participants of the training course to clearly show that the parties understood that the information being shared was confidential. I also accept that release of this information would prejudice the giving of similar information in future by Judge Gearty in her capacity as Director of Judicial Studies or indeed any other judges that may be tasked with delivering the training. I am also satisfied that in order to allow the Council to fulfil its statutory functions under the 2019 Act, it is important that the Council continue to receive future information of this nature. 

In the circumstances, I am satisfied that the four requirements in section 35(1)(a) have been met and that section 35(1)(a) applies to the record.

However, that is not the end of the matter as section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the FOI request concerned (section 35(3) refers).  I must therefore consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting information provided in confidence.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.

However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

Moreover, while the Court stated that the public interest balancing test involves a -�weighing of the respective private and public interests in the analysis of the records in issue-�, it did not disturb the guidance that it previously gave in the Rotunda Hospital case I have referenced above, in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 

I therefore consider that if I am to direct the release of the records at issue, I am required to identify a specific public interest, identifiable following an analysis of the relevant record in this case, which is sufficiently strong as to outweigh the interests of protecting information that was given in confidence.

The Council argued that there is a clear public interest in facilitating training on matters such as judicial conduct and ethics for members of the judiciary.  It further argued that it is clearly not in the public interest that judicial trainers such as Judge Gearty would refuse to share training materials with the Council in the future for fear that such information would be released in a manner not in keeping with the methodologies adopted by the trainer. The Council is also of the view that release of the record at issue could deter certain judges from participating in a training course, something which it clearly considers to be contrary to the public interest. Overall, the Council is of the view that the public interest is better served by protecting the confidentiality of judicial training materials, strengthening judicial participation in training and in safeguarding the independence of the judiciary in line with international best practice. 

It seems to me that there is a significant public interest in ensuring that members of the judiciary receive appropriate training in matters such as ethics and judicial conduct. In order to do this, I accept that judicial trainers such as Judge Gearty must be able to undertake such training in a manner which safeguards the confidentiality of the process and ensures that trainers can conduct courses effectively without any outside interference. It is not apparent to me, having carefully considered the content of the record, that there is any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case. Accordingly, I consider that the public interest would, on balance, be better served by refusing to release the record at issue. I find therefore that the Council was justified in refusing to release the record at issue on the basis of section 35(1)(a) of the FOI Act.

Having found section 35(1)(a) to apply to the record at issue I do not consider it necessary to examine the applicability of the remaining provisions relied on by the Council. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Judicial Council-�s decision to refuse access, under section 35(1)(a) of the Act, to the presentation on ethics training provided to new judges.  

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