Whether the Department was justified in refusing access, under sections 42(a)(i) and 42(f) of the FOI Act, to a copy of an affidavit sworn by a Departmental official as part of specified judicial review proceedings 

7 March 2023

Background

In a request dated 4 April 2022, the applicant, a Departmental official, sought access to an affidavit sworn by a named official in the Department as part of specified judicial review proceedings relating to an immigration matter involving a named individual.   

In a decision dated 11 April 2022, the Department refused the request under section 37 of the FOI Act, which is concerned with the protection of third party personal information.  On 3 May 2022, the applicant sought an internal review of that decision. He said he had read the affidavit in question and that it was the information in recitals 12 to 23 of the affidavit to which he was seeking access. He said he was not seeking to access the personal information of the individual contained in the record. 

On 31 May 2022, the Department issued its internal review decision wherein it refused access to the record under sections 42(a)(i) and 42(f) of the Act. On 24 October 2022, the applicant applied to this Office for a review of the Department-�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 Department as outlined above, to applicant-�s comments in his application for review and to the submissions made by the Department in support of its decision.  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 Review

This review is concerned solely with whether the Department was justified in refusing access, under sections 42(a)(i) and 42(f) of the FOI Act, to the information in recitals 12 to 23 of the specified affidavit.

Preliminary Matters                                                                        

Section 13(4) of the Act provides subject to the Act, in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicants-� motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

Analysis and Findings

Section 42(a)(i)

Section 42(a)(i) of the Act provides that the Act does not apply to certain records held by the courts. In its submissions, the Department said a draft affidavit is created by the Chief State Solicitor-�s Office, a sworn document is a court document, and a certified copy of a court document is created by the CSSO. It said a sworn and filed affidavit is a -�court document-� held by the Courts. It referred to section 65(3) of the Court Officers Act 1926 (the Act of 1926) which states as follows:

-�All proofsand all other documents and papers lodgedin or handed in to any court in relation to or in the course of the hearing of any suit or mattershall be held by or at the order and disposal of the judgeor the senior of the judges by or before whom such suit or matter is heard.-� [Department-�s emphasis]

The Department also referred to section 2(5) of the FOI Act which provides that -�a reference to records held by an FOI body includes a reference to records under the control of that body.-� It argued that the sworn affidavit is held by and under the control of the courts and that it is not held by the Department. It said the website of the Courts Service indicates that -�All court records created in relation to court proceedings are considered -�court records-�-�.

The Department noted that the Guidance Note prepared by this Office on section 42 of the Act (availablehere) provides as follows:

-�Section 42(a) may be relevant where a request is made to the courts or a service tribunal in relation to a record held by them. The provision does not extend to copies of such a record held by other public bodies, even if the original is held by the courts or a service tribunal.-�

It argued that -�it does not appear logical that where a document held by a body is outside the FOI Act 2014 a copy of it held by another body could circumvent that and bring it within the Act-�.

Section 42(a) is quite clear. It applies to records held by the courts and not to records held by other FOI bodies. Indeed, the website of the Courts Service provides that -�recordsheld or created by the office, other than those relating to the general administration of the Office, are not accessible under the FOI Act-� (my emphasis). The website also goes on to say that -�This means that records concerning court proceedings are not accessible under the FOI Act.-�. I understand this to mean that records concerning court proceedingsthat are held or created by the courtsare not accessible under the FOI Act.

In essence, the Department-�s argument is that the copy of the affidavit that is in its possession is deemed to be held by the courts for the purposes of section 42(a)(i) of the FOI Act. This Office has previously considered a somewhat similar argument in Case 170458 (availablehere). In that case, the then Department of Public Expenditure and Reform (DPER) argued that copies of records it held, comprising letters it had sent to the Office of the Director of Public Prosecutions, were excluded from the scope of the Act pursuant to section 42(f) of the Act. That section provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions (the DPP) or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration.

DPER essentially argued that the records it held were copies of the original records held by the DPP and that as such, the copies were also deemed to be held by the DPP and thus captured by section 42(f). I rejected that argument. I found that the fact that DPER may also hold exact copies of records held by the DPP does not mean that the copies held by DPER are deemed to be held by the DPP. I found that the records at issue were not created by the DPP, that they were clearly held by DPER, and that section 42(f) did not apply. The DPP appealed my decision to the High Court. The High Court dismissed the appeal. It found that section 42(f) -�cannot be asserted by a second FOI body, which holds a duplicate of a record held by the DPP, to refuse to disclose a record in its lawful possession. The DPP and the second FOI body do not hold the self-same -�record-� within the meaning of section 42(f)-�.

In my view, the same reasoning must apply in this case. I further note that section 65(3) of the Act of 1926 refers to documentslodged in or handed into any court (my emphasis). The record at issue in this case is a copy of such a document and is not the actual document that was lodged in or handed in to the courts. Rather, it is a copy of such a document. Moreover, it is in the possession of the Department and not the courts.

Accordingly, I find that section 42(a)(i) does not apply to the record at issue.

Section 42(f)

Section 42(f) provides that the Act does not apply to a record held or created by the Office of the Attorney General or the Office of the DPP, other than a record relating to general administration. The Chief State Solicitors Office (CSSO) is a constituent office of the Office of the Attorney General. The Department said the draft affidavit was created by the CSSO and certified and lodged by the CSSO with the Courts Service and as such is captured by section 42(f).

In the course of his correspondence with this Office, the applicant accepted that the affidavit had been drafted by the CSSO in the manner described. However, he argued that the draft affidavit as prepared by the CSSO would have been inspected by the relevant Department official and would have been amended as appropriate; including with the possible addition of further information. He argued that following this, the draft affidavit would have been sworn before a practising solicitor of commissioner for oaths and that the official would have paid for this swearing out of funds provided by the Department. He argued that as the relevant official -�completes-� the affidavit and pays for it, it is more appropriate to consider that the record belongs to the official and/or the Department.

I do not accept the applicant-�s arguments. The record at issue is a copy of the final affidavit that was sworn by the relevant official. It was, at all times, a record created by the CSSO and was filed by the CSSO with the courts, notwithstanding that the relevant official may have had input to the final draft. I find that the record at issue was created by the CSSO. I am also satisfied that it does not relate to general administration. 

While the 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 legislation or managing litigation. I find, therefore, that section 42(f) applies to the record. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision to refuse access to the record at issue 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