Whether the Courts Service was justified in refusing access to records relating to the applicant and/or her late son under sections 31(2)(b) and 42(a)(i) of the FOI Act and whether it was justified in refusing access, under section 15(1)(a) of the Act, to additional records on the basis that it has taken all reasonable steps to locate the relevant records

19 October 2023

Background

This case has its background in the tragic death of the applicant-�s son and a subsequent scoping exercise carried out by a Judge into the circumstances surrounding the matter. In a request dated 22 June 2022, the applicant sought access to all records between 1 August 2011 and 25 May 2022 held by the Courts service referencing her name and/or her late son-�s name.

In a decision dated 11 August 2022, the Court Service part-granted the request. It refused access to certain records under sections 30(1)(b), 31(2)(b), 37(1) and section 42(a)(i) of the Act. It also outlined details of the searches carried out to locate the records sought by the applicant. On 28 September 2022, following a request by the applicant for an internal review of its decision, the Court Service affirmed its original decision. The Court Service informed the applicant that some of the records to which access was refused under section 31(2)(b) may be made available once the scoping exercise report (the Report) is published by the Minister for Justice. On 24 March 2023, the applicant applied to this Office for a review of the Court Service-�s decision.

Following correspondence between this Office and the applicant about the scope of the review, the applicant narrowed the scope of her application for review on 19 August 2023. She confined her application to a review of;

(i). the Courts Service-�s decision to refuse access, under section 42(a)(i) of the Act, to various court orders that had been provided to the Office of the Chief State Solicitor (CSSO) regarding an individual who was involved in a road traffic accident which resulted in her son-�s death, and

(ii). the Courts Service-�s decision to refuse, under section 31(2)(b) of the Act, records relating to the scoping exercise carried out by the Judge, excluding the Report and any draft sections of the Report

The applicant also sought records of any subsequent contact made in relation to an email dated 23 September 2015 which was among the records released to her by the Courts Service. In her correspondence, she also noted that the Report was published by the Minister on 3 July 2023.

During the course of the review, I provided the applicant with details of the submissions made to this Office by the Courts Service during the review. This included details of the basis for its refusal of the relevant court orders under section 42(a)(i). I also informed the applicant that the Courts Service accepted her argument that section 31(2)(b) of the Act no longer applied and that it had decided to re-examine the records it originally refused under section 31(2)(b) to determine whether they could be released. Finally, I provided the applicant with details of the searches undertaken by the Courts Service to locate the other records she sought. I will consider the applicant-�s submissions in response to these matters 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 correspondence referred to above, including the submissions made by the applicant and the Courts Service. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether the Courts Service was justified in refusing access, under section 42(a)(i) of the Act, to the relevant court orders provided to the CSSO and in refusing access, under section 31(2)(b) of the Act, to records relating to the scoping exercise referred to above.

It is also concerned with whether the Courts Service was justified in refusing access, under section 15(1)(a) of the Act, to a record of any follow up contact made in respect of the email dated 23 September 2015.

Preliminary Matters

It is important to note that a review by this Office under section 22 of the FOI Act is considered to be -�de novo-�, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.    

Analysis and Findings

Court Orders - section 42(a)(i)

As noted above, the applicant is seeking access to specific court records, listed in records she received from the Courts Service, that had been shared with the Chief State Solicitor-�s Office (CSSO).

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 Act is silent on the meaning of general administration, this Office considers that it refers to records which have to do with 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.

In its submission to this Office the Courts Service said:

• The records at issue are records of the court; specifically, access is sought to court orders made in several criminal court proceedings involving a third party. The applicant was not a party to these proceedings, and therefore no access rights exist. Access rights to court records are set out under Rule 5 of the Data Protection Act 2018 (Section 159(3)) Rules 2018 (S.I. No. 663 of 2018).
• The CSSO did not seek access to the records concerned under FOI legislation back in 2017 but did so in their role as legal representatives for the Garda Commissioner in proceedings brought by the applicant.
• An application for access to court records held on the court file and made by a person who is not a party to the case must be made directly to the court where the case was heard and put before the Judge for decision outside of the Freedom of Information Act. The presiding Judge will decide the bone fides of the application.
• Ultimately, there is no lawful basis which would allow the Courts Service, as data processor on behalf of the Courts, to release these court orders to the applicant without the direction of the Court. No access rights exist under FOI legislation in accordance with Section 42(a)(i).

In her submissions to this Office, the applicant said she accepts that section 42(a)(i) of the FOI Act precludes the release of court orders under the FOI Act. The applicant said that she is not a party to these previous criminal proceedings, involving the named third party, but neither were the CSSO. She said the CSSO are at this point, or when they sought these records, defending the Gardai.

The applicant said it is a tenuous argument that just because the CSSO are representing the Gardai now, they are entitled to get these orders. She argues that they were not part of the criminal proceedings then. The applicant noted an extract from one of the emails which she had received in response to her FOI request, which stated, -�only parties to the case are entitled to any document in the case-�.

The applicant said she accepts what the FOI Act says, but says it does not seem right that the CSSO are given the records while she has to make applications to the various courts at huge expense and time to her. The applicant suggests that in line with fair procedure the Courts Service could have considered giving her access to these records outside of the FOI process.

It is important to note that I can only have regard to the provisions of the FOI Act in considering whether the Courts Service was justified in refusing the applicant copies of the court orders at issue in this case. Having regard to the nature of the records at issue here and the submissions before this Office, I am satisfied that the records at issue are held by the courts and that neither of the exceptions described above apply. I find that the that the Courts Service was justified in its decision to refuse access to the records sought under section 42(a)(i) of the FOI Act.

Records relating to the Scoping Exercise - section 31(2)(b)

The Courts Service refused access, under section 31(2)(b) of the Act, to records relating to the scoping exercise carried out.

Section 31(2)(b) of the Act provides as follows:

"A head may refuse to grant an FOI request if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of;

a. a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies,

b. any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor, or,

c. any tribunal or other body or individual appointed by either or both of the Houses of the Oireachtas to enquire into specified matters

and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed."

For the section to apply, a number of conditions must be met, namely the record must relate to the appointment, proposed appointment, business or proceedings of a tribunal, body or individual specified in paragraphs (a), (b) or (c) above, the request must be made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed, and the record must not relate to the general administration of the tribunal, body or individual or of any of their offices (section 31(3) refers).

In response to my invitation to make submissions on this matter, the Courts Service said it has always made it very clear to the applicant that the exemption would no longer apply once the report was published. It said a review of the records is now underway, and that it had indicated this to the applicant in its email to her on 28 August 2023, which issued in response to her email to the Courts Service on 13 July 2023. It said this means that all records listed in its Schedule of Records to which access was refused in whole or in part under Section 31(2)(b) are now being re-examined to determine whether release should be granted. It added that given the volume of the records concerned, the review would require a couple of weeks and it is possible that once the review has been completed, that parts or complete records may be withheld or redacted in accordance with other exemptions provided for under the FOI Act.

In my email dated 13 September 2023, I informed the applicant of my intention to formally annul the decision of the Courts Service to refuse access to records at issue under section 31(2)(b) and to direct it to make a fresh decision on those records. In reply, the applicant argued that -�this gives them the opportunity to use another section of the Act to refuse or part grant and further frustrate my access to these records-�. The applicant asked that I direct release of the relevant records.

As I explained in my correspondence with the applicant, I do not believe it is appropriate for me to simply direct release of the relevant records on the basis that section 31(2)(b) no longer applies, particularly where the Courts Service suggest that other exemptions may apply to information contained in the records. Accordingly, I annul the decision of the Courts Service to refuse access to certain records under section 31(2)(b) of the Act and I direct it to make a fresh decision on those records. As I explained to the applicant, her normal rights of appeal will apply to the new decision by the Courts Service.

Searches -� section 15(1)(a)

In her application to this Office, the applicant referred to an email that had been released to her by the Courts Service. She noted a comment in the email, dated 23 September 2015, between staff of the Courts Service, which said -�I will contact him [the State Solicitor] again in the morning-�. The applicant is seeking a record of any follow-up contact which may have taken place. It is the Courts Service-�s position that all reasonable steps were taken to fulfil the applicant-�s FOI request.

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. In this case, this means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision that no further relevant records exist.

As I have outlined above, the Courts Service provided this Office with details of the searches it said it undertook in an effort to locate further relevant records, and its reasons for concluding that no further records exist or can be found. I provided the applicant with these details in my email dated 13 September 2023. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In response to the Courts Service-�s submission to this Office, the applicant suggested that that it could check with the State Solicitor to ask if he received a follow up email or if he had a note of a phone call on the matter. As I explained in my reply to the applicant, any such records, if they exist, would be records held by the Chief State's Solicitor's Office which is a separate body to the Courts Service. This case concerns access to records held by the Courts Service.

In its submissions to this Office, the Courts Service said searches were carried out of both hard-copy and electronic records held by the named Courts Service officials and offices (as listed in the Courts Service internal review decision which it issued to the applicant on 28 September 2022). The Courts Service said that the search of records extended across existing filing systems held in those locations for the period of 1 August 2011 to 25 May 2022, including searches across shared network folders, internal office databases where available, hard-copy folders and the direct email accounts of both current and retired staff deemed relevant to the request, using key words that were agreed with the applicant.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

The question I must address in this case is whether the Courts Service has carried out reasonable searches to locate all relevant records relating to the applicant-�s request. After reviewing its submissions and taking the applicant-�s comments into consideration, I am satisfied that it has. I have no evidence before me to indicate that further searches are warranted. Accordingly, I find that the Courts Service was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant records on the ground that no additional records relating to the applicant-�s request exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Courts Service. I find that it was justified in refusing access to the relevant court records under section 42(a)(i) of the Act. I also find that it was justified in refusing access, under section 15(1)(a) of the Act, to any further records subsequent to the email dated 23 September 2015 on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. Finally, I hereby annul the decision of the Courts Service to refuse access to certain records under section 31(2)(b) of the Act and I direct it to make a fresh decision on those records.

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.
 

Richard Crowley
Investigator