Whether the Courts Service was justified in refusing access to copies of the Dublin County Registrar Civil Motions Lists from 1 February 2022 to 24 May 2022 inclusive under section 42(a)(i) of the Act, on the ground that the FOI Act does not apply to the records sought

1 November 2023

Background

On 28 December 2022, the applicant requested a copy of the Dublin County Registrar Civil Motions Lists from 1 February 2022 to 24 May 2022 inclusive. On 6 January 2023, the Courts Service refused the request on the basis that section 42(a)(i) applies, i.e. that the records sought are court records to which the FOI Act does not apply. There is no requirement to seek an internal review in cases where an FOI body has refused a request solely on the basis that section 42 applies. On 7 January 2023, the applicant applied to this Office for a review of the Courts Service's decision. 

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out the review, I have had regard to the correspondence between the applicant and the Courts Service as outlined above, and to communications between this Office and both the applicant and the Courts Service 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 Courts Service was justified in its decision to refuse access, under section 42(a)(i) of the FOI Act, to copies of the Dublin County Registrar Civil Motions Lists for certain specified dates.

Analysis and Findings

Section 42(a)(i)

Section 42(a)(i) of the Act provides that, subject to two exceptions, the FOI Act does not apply to records held by the courts that relate to a court or to proceedings in a court. The first exception concerns records that relate to proceedings in a court held in public that were not created by the court and whose disclosure to the general public is not prohibited by the court.

The second exception concerns records relating to the general administration of the courts or the offices of the courts. While the FOI Act is silent on the meaning of general administration, this Office considers that it refers to records which have to do with the management of the courts or the offices of the courts, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. We take the view that "general administration"� does not refer to records relating to matters concerning the core business of the courts.

The Courts Service's submissions

The Courts Service said that the records sought are electronically generated from the Circuit Court case tracking system by Courts staff carrying out their functions on behalf of the court. It said the records are created for the purpose of court proceedings and considered to be records of the court. It said County Registrars are appointed directly by Government and perform a number of quasi-judicial functions in the Circuit Court which are conferred on them by statute. It said they are independent in the exercise of these quasi-judicial functions. It referenced the Circuit Court Rules (Order 18) as follows:

"(1) The County Registrar, within the County to which he is assigned, shall be the proper officer of the Court in respect of all its jurisdiction, and shall be responsible for the discharge of all duties imposed upon him or upon the Office, by Statute or otherwise, and for the safe custody of all documents and records of the Court."�

The Courts Service stated that the information in the records sought is created by Circuit Court staff in consultation with the County Registrar who has overall responsibility for the lists. It said the Courts Service has no power to schedule cases or create the lists. It said that while the Courts Service has a number of functions to support office holders exercising judicial powers, Section 9 of the Courts Service Act 1998 makes it clear that the exercise of judicial functions, including by statutory officers performing limited functions of a quasi-judicial nature, are independent from the Courts Service and that the Courts Service can in no way interfere with the performance of these functions. It said the lists in question are created for and on behalf of the County Registrar for the purpose of organising and informing practitioners, litigants and the public as to the listings for the day. It said the Courts Service staff who assist and support the functions of the County Registrar pursuant to Section 20(1)(a) of the Courts Act 1998 are officers of the Circuit Court in addition to being Courts Service employees, but that this support and assistance is performed as part of their functions as court officials.

The Courts Service added that the Legal Diary is published for a limited time only for the benefit of court users. It said these records relate to information on specific court cases and are not information on the general administration. It said information as to general information is clearly information that could be created and produced by the Courts Service but that the information in the lists sought relate to records of court proceedings which by definition are court records.

The applicant's submissions

In his submissions to this Office, the applicant made a number of arguments in support of his view that section 42(a)(i) did not apply to the records sought in this case. In summary, he contended that the lists were created by the Courts Service, not by a court; that their disclosure was not prohibited by a court; and that they relate to the general administration of the Courts Service. He also argued that the lists "constitute business transacted"� in the Circuit Court Office "under the control and management"� of the County Registrar, "not a judge"�. The applicant was also of the view that as the lists in question were not "lodged in or handed in to any court" and that, therefore, section 65 of the Court Officers Act 1926, as cited by the Courts Service in its decision to refuse his request, did not apply.

The applicant noted that the particular lists concerned had previously been published on the Courts Service's website. He was of the view that they should therefore be reusable in accordance with the Courts Service's published Re-Use of Information Guidelines, which state that "[t]he information published on our website, with the exception of court judgements, is the copyright of the Courts Service".

The applicant also noted that the Courts Service continues to publish current Dublin County Registrar Civil Motions lists on its website as part of its Legal Diary and said that lists were removed once they were "older than one month"�. He said the published lists for the Superior Courts were not subject to the same cut off point. The applicant was of the view that this was "inconsistent, contradictory, and incongruous"� with the Courts Service's refusal of his request for access to similar records relating to the Circuit Court.

Analysis

The Courts Service is an independent State Agency established by the Courts Service Act, 1998 to manage the courts and support the judiciary. According to its published Corporate Strategic Plan 2021-2023, it is responsible for the administration and management of the Courts and is mandated to;

• manage the Courts,
• provide support services to the judiciary,
• provide information on the Courts system to the public,
• provide, manage and maintain Court buildings, and
• provide facilities for user of the Courts.

It seems to me that much of the Courts Service's submission is based on its argument that the records sought are held by the courts. For section 42(a)(i) to apply, it is not sufficient that the records sought are held by the courts. Rather, as outlined above, the record must also relate to a Court or to proceedings in a Courtandneither of the two exceptions must apply, the second of which requires that the record must not relate to the general administration of the courts or the offices of the courts.

On that point, the Courts Service's argument is that the records do not relate to the general administration of the courts or the Offices of the courts but relate to records of court proceedings and are generated and published solely for purposes connected with the administration of justice. As the Courts Service itself outlined, the lists are prepared and published for the purpose of organising and informing practitioners, litigants and the public as to the listings for the day. They form part of the administrative arrangements put in place to allow the courts to carry out their day-to-day business. The records inform all relevant stakeholders, and members of the public, as to when and where to attend, and what matters will be dealt with. In essence, they form part of the administrative arrangements put in place to allow for the administration of justice as opposed to relating to the administration of justice itself. In my view, a list created and published for the efficient management of proceedings in a court is too remote from the actual proceedings themselves to comprise a court record of the type that is exempt from the FOI Act under section 42(a)(i).

Having carefully considered the matter, I am satisfied that the records in question relate to the general administration of the courts and accordingly, I find that the Courts Service was not justified in its decision to refuse access to the records sought under section 42(a)(i) of the FOI Act.

For the sake of completeness, I note that the Courts Service indicated in its correspondence with this Office that the records sought will include a large amount of personal information relating to third parties. I note that the lists sought were, at one stage, published on the online Courts Service Legal Diary. While section 37(1) of the Act provides for the protection of third party personal information, this is subject to certain exceptions, including those set out in sections 37(2)(c) and 37(2)(d), which provide that section 37(1) does not apply if;

(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public, or

(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public

While the Courts Service has not sought to rely on section 37(1) to refuse the request, I am satisfied that if it had, I would have found section 37(1) not to apply by virtue of the provisions of 37(2)(c) and/or 37(2)(d).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Courts Service's decision to refuse access to copies of the Dublin County Registrar Civil Motions list for certain specified dates on the ground that the FOI Act does not apply to the records sought under section 42(a)(i) of the Act. I direct the release of the records 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.

Stephen Rafferty
Senior Investigator