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Cite as: [2024] IEIC 146719

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Decision

Mr. A and The Courts Service

From Office of the Information Commissioner (OIC)

Case number: OIC-146719-N0K7D2

Published on 31 October 2024

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the Courts Service was justified in refusing an application under section 10 of the FOI Act for a statement of reasons as to why certain records could not be found in the context of a Judicial order to release records

31 October 2024

Background

This review concerns a request for a statement of reasons. By way of background, the applicant, through his solicitors, brought a civil court application before a named district court in 2023. He sought an order of the court allowing access to court records relating to certain court proceedings. The matter was heard by a named Judge. In its submissions, the Courts Service said that the Judge explained to the applicant's solicitor that Digital Audio Recordings of the proceedings did not exist as the technology had not been installed at the time. It said that the Judge did direct that the applicant "was to be provided with all available records as can be found". The Courts Service said that the court office subsequently provided copy orders in respect of four case outcomes to the applicant by sending same to his legal practitioner. The Courts Service said that the Judge's wording, which referred to "all records" gave rise to some uncertainty, an issue which was later raised by the applicant. The Courts Service said that in order to provide certainty as to the Judge's order, clarification was sought from the Judge by the court office manager and the Judge confirmed that the court office had complied in full with his order by issuing the relevant copy orders only.

In correspondence dated 19 December 2023, the applicant posed four questions to the Courts Service. The first and second questions concerned the provision of the court orders and the manner in which these were sent to the applicant. In the fourth part, the applicant sought confirmation from the Courts Service in respect of the named Judge and his stated confirmation that his order had been complied with. The third part of the correspondence was a request directed at the FOI unit of the Courts Service. The applicant requested an "explanation and a statement of reasons under FOI legislation as to why the Minute Books, Charge Sheets, Summons etc. as outlined must be preserved in accordance with the National Archives Act 1986 7(5) pursuant to the Department of Justice Circular 20/93 cannot be found in response to [named Judge's] order to release all records which could be found on 6th of July 2023".

The applicant made certain submissions in his original request. He said that the Courts Service stated that no breach of the National Archives Act had occurred and that no destruction of files had taken place. He therefore queried where the relevant records are. He referenced previous correspondence received from the Courts Service as well as the Courts Officers Act 1926 and the Data Protection Act 2018. He referenced a particular District Court form (12B1). He asked whether it was the case that no such records ever existed and if such records did exist, when it became known that they could no longer be found and if there is an obligation on the Courts Service to report the loss of records.

It appears that on 8 January 2024, the applicant sent further correspondence to the Courts Service. He included sections of his original request as well as excerpts from other correspondence. He sought responses to specific questions which he said should be provided within the statement of reasons. In respect of the fourth part of his original correspondence, the applicant included an addendum which read "I am requesting this point number 4 also be provided under FOI legislation and included within the overall statement of reasons requested".

In a decision dated 19 January 2024, the Courts Service refused the applicant's request for a statement of reasons. Firstly, it said that all records created in relation to court proceedings are considered "court records" and that section 42(a)(i) of the FOI Act precludes the release of court records other than records relating to the general administration of the courts. It said that the applicant's request for access to court records was therefore refused in accordance with section 42(a)(i) of the FOI Act. It said that court records are under the control of the courts and not the Courts Service. Secondly, the Courts Service said that the applicant's request for a statement of reasons does not meet the requirements under sections 10(1), 10(2)(a) and 10(5) to be considered a valid request. I will consider its position in this regard in more detail below.

On the same day, the applicant sought an internal review of the Courts Service decision. The applicant referenced the FOI body's refusal to provide a statement of reasons as to why court records cannot be found. He made certain submissions in his request for an internal review which related to section 10(5) of the FOI Act and the way in which the applicant said he was impacted by the Courts Service's inability to find certain court records. The following day, the applicant sent amended correspondence regarding his request for an internal review. He referenced his correspondence dated 8 January 2024 and the specific questions therein and again sought reasons as to why records cannot be found.

On 21 February 2024, the Courts Service affirmed its original decision. It provided further arguments in support of its position. On 26 February 2024, the applicant applied to this Office for a review of the Courts Service's decision. He referenced the refusal of the FOI body to provide a statement of reasons as to why no court records could be found after a District Court Order to release all such court records was made. He also referenced a "Failure to provide information/data pertaining to the confirmation that [named Judge] provided to the Courts Service that they fully complied with his Order of 6th of July 2023".

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 Courts Service and the applicant, as well as correspondence between the parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As noted above, the applicant's original correspondence with the FOI body comprised four parts. Due to the wording of the request, and the specific reference to the FOI unit, the Courts Service appears to have understood Part 3 to be the relevant request under section 10 of the FOI Act for a statement of reasons. As noted above, part 4 of the correspondence sought the "written or other confirmation" of a named Judge to support a statement made in earlier correspondence that the Judge had confirmed that an order had been complied with in full. In correspondence which the applicant sent to the Courts Service on 8 January 2024, he requested that part 4 be "provided under FOI legislation and included within the overall statement of reasons requested".

The Courts Service made no reference to this specific part of the applicant's correspondence in its original decision under the FOI Act. The applicant made no reference to the matter in his request for an internal review, though I note that he attached a copy of his 8 January correspondence in the amended internal review request which was sent on 20 January 2024. The part 4 request was not explicitly referenced in the internal review decision which issued. In his application to this Office, the applicant referenced the FOI body's failure to provide information or data pertaining to the Judge's confirmation.

It seems to me that the Courts Service reasonably initially understood the applicant's request under the FOI Act to be limited to part 3 of his correspondence. While the applicant later asked that a response to part 4 be included in the overall statement of reasons requested, I note that he made this request a number of weeks after submitting his original request. In addition, it seems to me that such a request relates to the content of the statement of reasons; it does not necessarily broaden the scope of the request or this review. I am satisfied that the Courts Service understood that the applicant was seeking a statement of reasons and made a decision in respect of his entitlement to same. While part 4 of his request could arguably also be understood to be a request for records containing the confirmation referenced, I am satisfied that in the context of his correspondence and the specific references to section 10, the FOI body was justified in understanding the scope of the request under FOI to be limited to a statement of reasons. The applicant did not dispute this understanding when seeking an internal review and the matter was not considered by the Courts Service as part of its decision-making. It is not open to a party to expand the scope of a review at this stage.

Accordingly, this review is concerned solely with whether the Courts Service was justified in its decision to refuse a statement of reasons as to why certain records could not be found in the context of a Judicial order to release records.

Preliminary Matters

Before I address the substantive matters arising, I wish to make a number of preliminary comments. Firstly, the Commissioner takes the view that the applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of an FOI body. For example, the applicant bears the burden of showing that they have a material interest in the matter. The FOI Act is silent as to the standard of proof which should apply in such cases. The Commissioner takes the view that the standard required is that of "the balance of probabilities". An applicant seeking a statement of reasons for an act of an FOI body under section 10 must show to the Commissioner that, on the balance of probabilities, he or she has a material interest in a matter affected by the act or to which it relates.

Secondly, during the course of this review, the Investigator notified the applicant of submissions made by the Courts Service and invited him to make submissions in support of his application for a statement of reasons. She posed certain specific questions in this regard. The applicant provided a response which ran to over 100 pages. Earlier submissions received by the applicant ran to 80 pages. Needless to say, I cannot refer to the submissions received in full but I confirm that I have had regard to same. Throughout the submissions, the applicant requested that this Office, and the Courts Service, provide responses, reasoning and citations in respect of questions posed. The Information Commissioner has a statutory duty under section 22(10) of the FOI Act to provide reasons for his decisions. While I am not required, and do not intend, to respond to the specific questions posed in the applicant's submissions, this Office always strives to provide robust reasoning to support decisions made.

Finally, I note that in his submissions the applicant makes repeated references to data protection legislation and rights under that statutory regime. For the avoidance of doubt, the FOI Act is entirely independent of data protection legislation and this Office has no remit in respect of any aspects of that regime.

Analysis and Findings

Section 10(1) of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Subsection (2) provides that nothing in section 10 shall be construed as requiring the giving to a person of information contained in a record which would fall to be refused as an exempt record.

As the applicant is aware, section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.

The act for which a statement of reasons is sought must affect a person particularly, albeit not necessarily exclusively. Where the act of an FOI body affects a wide class of people (i.e. a class of significant size having regard to all the circumstances) and applies equally to all members of the class, an applicant who is a member of that class does not have a material interest in a matter affected by the act for the purposes of the FOI Act. Generally speaking, therefore, the provisions of section 10(5) exclude acts which have general applicability.

Section 10(13) of the Act defines an "act" as including a decision (other than a decision under the FOI Act) of the body. The term "benefit", in relation to a person, is defined to include:

(a) any advantage to the person,

(b) in respect of an act of a public body done at the request of the person, any consequence or effect thereof relating to the person, and

Courts Service submissions

In its submissions to this Office, the Courts Service argued that the records which are the subject of the applicant's request are records under the control of the court and not under the control of the Courts Service. It said that the records must be characterised as concerning the core business of the courts. Its position is that the FOI Act does not apply to the records by virtue of section 42(a)(i). Section 42(a)(i) provides that the FOI Act does not apply to certain records held by the courts and relating to, or to proceedings in, a court.

The above argument appears to be based on a presumption that the giving of a statement of reasons would necessarily require the disclosure of information contained in exempt records. As this Office has explained in previous decisions, section 10(2)(a) does not provide an absolute prohibition on the entitlement to such statements. If a record is exempt by virtue of section 42(a)(i) then the public body is not required to include in a statement of reasons any information that is contained in that record. This may mean that, on occasion, a body may refuse to provide a statement of reasons altogether as to do so would require the disclosure of information contained in exempt records. On the other hand, if the body can provide a statement of reasons without disclosing information contained in exempt records then it must do so if the applicant has an entitlement to such a statement.

In response to queries from this Office, the Courts Service said that it is not in lawful possession of the records concerned and cannot comment or interfere with the conduct of the business of the courts. It said that Courts Service staff attached to the relevant district court office solely act under the direction of the presiding judge in the performance of their support function for members of the judiciary. It said that court officials can be within the remit of either the Courts Service or the courts, depending on whether they are dealing with administrative or court matters. It said that when registrars are dealing with court matters and court records, they are under the direction of the courts.

If a public body refuses to provide a statement of reasons on the ground that it is not required to disclose information contained in exempt records, I would expect it to be in a position to explain how providing the statement sought would require the disclosure of such information. It is also worth noting that section 42(a)(i) does not provide for the exemption of all records held by the courts. The section provides that the Act does not apply to a record held by the courts and relating to a court or proceedings in a court "other than-� a record relating to the general administration of the courts or the offices of the courts". Therefore, if the provision of a statement of reasons necessitated the disclosure of information contained in a record relating only to the general administration of the courts, the Courts Service could not refuse to provide such a statement by virtue of section 10(2)(a).

It seems to me that, notwithstanding its reliance on section 42(a)(i), the arguments advanced by the Courts Service centre on the question of whether the act identified in the applicant's request is an act of the Courts Service to whom the application was made or, instead, an act of the courts.

According to its website, the Courts Service is an independent State agency established by the Courts Service Act 1998 to manage the courts and support the judiciary. Its functions include the management of the courts, the provision of support services for judges, the provision of information on the courts system to the public, the provision, management and maintenance of court buildings, and the provision of facilities for users of the courts. It does not have a judicial function. The Courts Service provided this Office with some background information in respect of the request. It said that outside of FOI, the manager of a relevant court office confirmed that "all that exists is the Garda summons and 3 charge sheets, which is common for [proceedings of this kind]". It provided some further detail about its tracking systems and said that no other court records are held by the relevant court office in relation to these cases. It said that no court records were lost, misplaced or destroyed. It said that minute books, Garda summonses and charge sheets are court documents directly linked to proceedings which contain handwritten notes of the presiding judge in the exercise of their judicial functions.

In its submissions, the Courts Service said that the applicant is seeking a statement of reasons relating to the release of court records on foot of a judicial decision. It said that it is not in a position to comply with such a request. It said that it has no authority to comment or interfere with the conduct of the business of the courts. It said that members of the judiciary are entirely independent in the exercise of their judicial functions and subject only to the Constitution and the law. It said that the applicant's request for a statement of reasons as to why certain records were not released to him relates to a judicial decision or judicial act and the Courts Service has no authority to intervene or comment. It said that details in respect of the Judge's decision were provided to the applicant. It said that the applicant has failed to demonstrate that he was affected by an act of the Courts Service, as distinct from an act of the courts. It said that he is not entitled to a statement of reasons from the Courts Service in respect of a judicial decision or act.

In addition, the Courts Service said that while the courts are not subject to FOI legislation, the applicant was in no way treated differently to any other court applicant seeking access to records of the court. It said that minute books, Garda summons and charge sheets are never made available to parties concerned. It said that the applicant was therefore not affected in a way that persons generally are not affected. More generally, the Courts Service said that the premise of the applicant's original request, for a statement of reasons as to why certain records cannot be found, "is wrong and without foundation". It said that the applicant has previously alleged that the relevant district court office did not comply with the Judge's order or that the records have been misplaced, lost or destroyed. The Courts Service said that both assumptions are incorrect. It said that the applicant has been provided with ample clarification on these separate points outside of FOI.

In sum, the Courts Service said that the applicant is not entitled to a statement of reasons as it has not made any decisions regarding his access to court records. It said that the form of access granted was subject to a judicial decision. It said that court records are not 'held' by the Courts Service and are exempt from the FOI Act in accordance with section 42(a)(i). It also said that the applicant has not identified how he was affected by an act of the Courts Service in a way that persons generally are not affected.

Finally, the Courts Service said that it has been fully transparent with the applicant at all times and has provided him with comprehensive assistance. It said that there is no further action which can be taken by the Courts Service. It said that the applicant's only option would be to re-enter the matter before the Judge for decision. In its conclusion, the Courts Service said that it had fully complied with the order of the court. It said that "charge sheets, summons and minute books have not been released, since they contain the handwritten notes of the Judge".

Applicant submissions

As noted above, the applicant's submissions to this Office were lengthy and I cannot reference them in full. His position is that he is entitled to a statement of reasons in respect of a matter which he said clearly affects him materially in comparison to other members of the public. He referenced his professional progression in this regard. He said that the Courts Service was asked to provide a statement of reasons under specific criteria and questions and it has not done so. He referenced the Courts Service's position that he is impacted by a decision of the judiciary. He referenced communications with the Judicial Council and a statement that it is a matter for the Courts Service to give effect to the relevant Judge's order. The applicant provided this Office with copies and excerpts from documents and correspondence. He provided threads of communications with various offices and bodies. I must note that the submissions were difficult to parse and included considerable repetition.

The applicant's original submissions were rooted in an understanding that records could not be found. For example, he referenced the Court Officers Act 1926 and a general prohibition therein on the disposal of court documents. He referenced a particular circular which allows for limited disposal of certain summonses and other records. In respect of his entitlement to a statement of reasons, the applicant argued that not being provided with the relevant court records materially affected him in comparison to other people. As noted above, he referenced professional progression in this regard. He said that the Judiciary Council has stated that it is a matter for the Courts Service to give effect to the Judge's order. In this regard, he appears to be countering the position of the FOI body that he was impacted by a decision of the judiciary rather than the Courts Service.

During the course of the review, the Courts Service made the decision to provide the applicant with a copy of the submissions it made to this Office. The applicant was invited to make any relevant submissions relating to the Courts Service's position and was also invited to provide focused submissions in respect of his entitlement to a statement of reasons under section 10. The submissions received in response referred to this review as well as a separate review before our Office which also concerns a request made by the applicant for a statement of reasons. The submissions also appear to reference separate requests made under FOI. I have considered all the submissions which appear relevant to this review.

The applicant said that the reference by the Courts Service to a Garda summons and charge sheets appears to be the first mention of such records being held or in existence. He queried why this was not confirmed previously. The applicant referenced communications with the Courts Service and the FOI body's ability to examine the court record. The applicant said that the Judge ordered the release of all documents associated with the relevant cases and "not only copy orders as is the claim of the Courts Service". The applicant's position is that there are inconsistencies in the Courts Service's submissions and that the submission received only "adds to the now changing narrative, uncertainty and overall confusion". He said that the consistent position of the FOI body until September 2024 was that no other court records existed on file other than court orders. In respect of what records were ordered for release by the Judge, he said that Courts Service staff appeared to have concerns about what precisely was ordered for release. He made submissions is respect of the Courts Service's position that original summons/charge sheets and minute books are never made available. He requested evidence to support this position. He said that the non-disclosure of "vital information" about the existence of records requires an explanation. The applicant made specific submissions about the existence or otherwise of minute books.

In respect of the Courts Service's position that the applicant has not identified how he has been affected by an act of the Courts Service in a way that persons generally are not affected, the applicant said that he appears to have been treated differently in respect of the creation of a minute book. His position appears to be that a minute book should have been created and that the fact that it was not impacts him. In addition, he said that when the Courts Service acts under the directions of a court, it makes decisions and undertakes acts. He said that while the direction may come from the judiciary, Courts Service staff undertake relevant acts. He referenced the collection, recording, organisation and storing and retrieving of data. His position is that such acts are acts of the Courts Service rather than the judiciary, as judges are not involved in providing information after an order for release is made.

The applicant listed the following as acts/decisions of the Courts Service which he said he has been impacted by: the FOI body explaining to a judge that only court orders existed on file; the failure of the Courts Service to disclose that other court records existed; and the non-production of minute book records for certain cases.

The applicant said that the Courts Service made the decision to provide copies of court orders only when the Judge "clearly ordered that the Courts Service provide any records that can be found". He said that such records can be obtained ordinarily from the administration offices of the Courts Service without any motions. His position is that no records which are under the control of the judiciary were provided. With reference to the Courts Service's reliance on section 42, he said that court records have not been requested under FOI legislation but were sought pursuant to a legal process in which an application was made to the Judge. With reference to the definition of "benefit" in section 10, the applicant made certain submissions in respect of the impacts he experienced. Given the sensitive nature of the information, I will not repeat them here but I confirm that I have had regard to them.

In response to the specific queries posed by this Office, the applicant said that pursuant to instruments of the court and court rules, the Courts Service has the power and function to provide information. He said that providing information regarding the existence of court records was an act and decision of the Courts Service. In respect of whether he has a material interest in a matter affected by an act or decision, the applicant referenced his professional career. He said that the non-release of court records which he was led to believe did not exist means that he cannot determine facts in respect of certain matters. He referenced the pursuit of natural justice in this regard.

Finally, the applicant said that the Courts Service needs to clearly explain why it acted as it has. In particular, he again referenced the FOI body "changing positions after 15 months which has caused significant distress and inconvenience and a number of FOIs and complaints to fully establish regarding the persistent position that no other court records existed on file other than court orders to a new position 15 months later that now other records do exist on file but they have not been released due to the judge's handwriting being upon such records". He again sought an explanation in respect of the non-production of court records and referenced a civil duty to create minute books in certain cases.

My Analysis

Section 10 of the Act affords a person the right to a statement of reasons for an act of an FOI body that affects the person. As I have outlined above, to be entitled to such a statement, the person must be affected by the act and must have a material interest in a matter affected by the act or to which it relates. Section 10(13) defines "act" in section 10 as including a decision of the FOI body. As stated above, section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which such an act relates if the consequence or effect of the act may be to confer a benefit on, or withhold a benefit from, the person without also conferring the benefit on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.

The requirement to provide a statement of reasons does not apply to every action of an FOI body. The Commissioner takes the view that the Oireachtas could not have intended that FOI bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the FOI body and its officials. Taking section 10 as a whole, the Commissioner's view is that the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question, then section 10 does not apply to that act.

Consider, for example, the case of an individual whose application for a means-tested social welfare payment was refused as the Deciding Officer incorrectly included certain income in his assessment of means that should have been disregarded. For the purposes of section 10, the act of the FOI body is the decision to refuse the payment while the benefit withheld is the social welfare payment itself. In that case, section 10 would require the FOI body to provide a statement to the individual which explains that the decision to refuse the payment was due to the Deciding Officer incorrectly including certain income in his assessment of means. However, it would not require the FOI body to provide a statement of reasons as to why the Deciding Officer incorrectly included certain income in his assessment of means.

In this case, the applicant sought a statement of reasons as to why certain records could not be found in the context of a Judicial order to release records. The act identified is the act of failing to find certain records. The applicant's position appears to be that the benefit withheld is the non-receipt of records he believes he should have received. Notwithstanding the arguments of the Courts Service that the applicant has not identified an act of the Courts Service, it seems to me that the applicant has not identified an act which conferred on or withheld from him a benefit. Moreover, any reasons the Courts Service might have for the act identified would have no bearing on whether the applicant received or did not receive a benefit. In my view, the substantive decision which withheld from the applicant a benefit was the refusal to provide him with certain records. If it was the case that the reason for the refusal was due to the failure to find the records, then for the purpose of compliance with section 10, a statement that indicated that the records were refused as they could not be found would, in my view, suffice. The section would not require the Courts Service to provide a further statement as to why the records could not be found.

In conclusion, therefore, I find that the Courts Service was not required to provide a statement of reasons in this case as the applicant has not shown that he was affected by the act identified or that he has a material interest in a matter affected by that act or to which it relates. Having so found, it is not necessary for me to consider the more substantive arguments of the Courts Service concerning whether the act was an act of the Courts Service or the Courts.

For the sake of completeness, and while it forms no part of this decision, I would note, in any event, that the Courts Service appears to have already explained why certain records were not provided to the applicant. As outlined above, it said that while the Judge directed that the applicant "was to be provided with all available records as can be found", clarification was sought from the Judge by the court office manager in order to provide certainty as to the Judge's order and the Judge confirmed that the court office had complied in full will his order by issuing the relevant copy orders only.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Courts Service. I find that the Courts Service was not required to provide a statement of reasons for the act identified as the applicant has not shown that he was affected by the act or that he has a material interest in a matter affected by that act or to which it relates.

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