Decision
Mr Z and The Courts Service
From Office of the Information Commissioner (OIC)
Case number: OIC-150117-D8X3G1
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URL: http://www.bailii.org/ie/cases/IEIC/2024/150117.html
Cite as: [2024] IEIC 150117
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Whether the Courts Service was justified in refusing access, under section 42(a)(i) of the Act, to copies of the Dublin County Registrar Civil Motions Lists from 1 February 2022 to 24 May 2022 inclusive on the ground that the FOI Act does not apply to the records sought
17 December 2024
On 28 December 2022, the applicant made an FOI request for the Dublin County Registrar Civil Motions Lists from 1 February 2022 to 24 May 2022 inclusive, in Word or PDF format. 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.
On 1 November 2023, we issued a decision wherein we annulled the Courts Service's decision and directed release of the records sought (OIC-133747). The Courts Service appealed that decision to the High Court. The matter was remitted on consent to this Office for a fresh decision. In the course of the fresh review, both the Courts Service and the applicant were invited to make new submissions on the matter and both did so.
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 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.
This review is concerned solely with whether the Courts Service was justified in refusing, under section 42(a)(i) of the FOI Act, the applicant's request for the Dublin County Registrar Civil Motions Lists from 1 February 2022 to 24 May 2022 inclusive.
What are the records at issue and do they exist?
The website of the Courts Service, www.courts.ie , contains a Legal Diary with lists of cases in the Supreme Court, the Court of Appeal, the High Court, the Central Criminal Court and the Circuit Courts. The lists available on the website appear to refer to current and very recent cases only, with lists older than a month being removed. The records sought by the applicant are the Dublin County Registrar Civil Motions lists, for the period 1 February 2022 to 24 May 2022 inclusive. It is not disputed by either party that these lists would have been available on the Courts Service website at the time, but that they are not available on the website now. These lists are managed in the Dublin Combined Civil Office, which is made up of the District Court Civil Office and Circuit Court Civil Office.
The Courts Service said that the Dublin Combined Civil Office does not retain hard copies of the published Legal Diary and only has draft lists in respect of the relevant period but that it cannot confirm that these were the actual finalised lists that were published on the Legal Diary because the lists are subject to last minute changes. It said that there is no central data repository for court lists published on the Legal Diary. It said that the ICT Unit confirmed that the web servers hosting the Legal Diary are not intended to function as a records management system and are cleared out periodically when data is automatically overwritten due to limits on storage capacity. However, the Courts Service said that the Legal Diary covering the period in question is still retrievable, by ICT administrators only. It highlighted that this is the exception and not the rule. Notwithstanding that there is no guarantee that equivalent lists could be retrieved for other time periods, I am satisfied that records containing the specific information sought by the applicant in his FOI request do exist.
Are the records "held" by the Courts Service?
Section 11(1) of the FOI Act confers a general right of access to records held by an FOI body. That right of access is subject to the other provisions of the Act. While the FOI Act does not define "held", this Office accepts 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 FOI Act 1997 in Minister 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) (section 6(1), which provides for the right of access to records held by public bodies), 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 records sought in this case to be deemed to be held by the Courts Service, it must be in lawful possession of the records in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the records.
Submissions of the Courts Service
It is the position of the Courts Service that, having regard to the Drogheda Review case, the records sought by the applicant are court records and that they are not held by the Courts Service. It said that while certain limited Courts Service staff who are Court officers can access the information in the records concerned, the Courts Service is not (its emphasis) in lawful possession of the records in connection with, or for the purposes of, its business or functions.
In support of its position, the Courts Service said that the County Registrar has management of the relevant lists and that he/she is an independent statutory officer under section 35 of the Courts Act 1926. It said that he/she is not an employee of the Courts Service, nor answerable to the Courts Service. It said that no changes can be made to any of the County Registrar's lists without his/her permission. It said that the only Courts Service staff who are authorised to have access to the lists of upcoming/current and previous court dates are those who have been formally assigned to the Dublin Combined Civil Office and that, with reference to section 18(b) of the Courts and Court Officers Act 2009, these staff members are deemed to be officers of the Circuit Court.
The Courts Service said that as the County Registrar is the party managing the list, with ultimate responsibility for it, he/she can be characterised as being in lawful possession of the record in connection with, or for the purposes of, its business or functions. It said that if it were the case that the Courts Service was characterised as having lawful possession of the records at issue, the independence of the County Registrar would be prejudiced, which is contrary to section 9 of the Courts Service Act 1998 which provides that no function or power of the Courts Service shall be exercised so as to interfere with the conduct of the business of the courts or to impugn the independence of a person other than a judge in the performance of limited functions of a judicial nature conferred on that person by law.
Furthermore, the Courts Service said that general Courts Service staff do not have the authority to access the records, and it is only Court officers assigned to that particular court office who may do so with the permission of the County Registrar. It said that there is thus a difficulty in directing the Courts Service to release the Court Lists, given that the general Courts Service itself does not have an entitlement to access the lists. It said that only those individuals who act in their capacity as Court officers assigned to the Dublin Combined Civil Office have access to the records.
Analysis
As outlined above, the test outlined in the Drogheda Review case for determining whether a record can be deemed to be held by a public body for the purposes of the FOI 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.
Both elements of the test must be met.
In relation to whether the Courts Service is in lawful possession of the records at issue in connection with, or for the purposes of, its business or functions, I have carefully considered the Courts Service's submissions and the role of the Courts Service more generally. 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. It seems to me that the provision of the website www.courts.ie and the publication of the Legal Diary is just one of the many ways that the Courts Service carries out its functions, as is the assignment of Courts Service employees to the Dublin Combined Civil Office, and other similar court offices.
I accept that the County Registrar is independent in his/her functions and is the person who manages and has overall responsibility for the lists at issue. However, I do not accept that to find that the Courts Service also has lawful possession of these lists would somehow prejudice the independence of the Registrar. To do so, it seems to me, would involve stretching the meaning of 'lawful possession' to include editorial control and/or a decision-making function in respect of how the lists are structured and managed. FOI bodies hold, and indeed release, records all the time that they did not create or over which they do not hold the ultimate control in terms of content. To exclude such records on the basis that they are not in the 'lawful possession' of the FOI body would, it seems to me, lead to an unacceptable situation where an FOI body could claim not to hold a record simply because they did not create it or have editorial control over it. The Courts Service has confirmed that the Legal Diary covering the period in question remains retrievable from the content management system albeit it is only accessible to authorised ICT administrators. I find that the Courts Service is in lawful possession of the record in connection for the purposes of its functions, in particular managing the courts and providing support services to judges. As a result, the first element of the test is met.
The second test is whether the Courts Service is entitled to access the information in the records. I do not accept the position that because only Court officers assigned to a particular court office have the authority to access the records, with the permission of the County Registrar, that this means that the Courts Service is not entitled to access the information in the records. In most, if not all, organisations there are limitations on which staff members can access which records, and access is generally provided only to those who require access in order to carry out their functions. For example, a government department's HR records may only be accessible to those working in the HR function; this does not mean that the department is not entitled to access the information in the records and that they therefore do not hold the records for the purposes of FOI. Notwithstanding that access may be limited to certain individuals carrying out certain functions, I find that the Courts Service is entitled to access the information in the record and that the second element of the test is met.
In summary, it seems to me that a key concern of the Courts Service is that to accept that it holds the records at issue for the purposes of the FOI Act would be to undermine the independence of the courts and specifically the County Registrar. For the avoidance of doubt, I fully accept that the authority to determine the make-up of the lists rests with the County Registrar, and that the Courts Service has lawful possession of the records and an entitlement to access the information contained within them, purely to carry out its functions in supporting and managing the courts. It seems to me that this is essentially akin to an agency type relationship between the courts and the Courts Services For all of the above reasons, I am satisfied that the Courts Service holds the records at issue for the purpose of the FOI Act.
Does section 42(a)(i) restrict the FOI Act from applying to the records sought?
Section 42 provides that the FOI Act does not apply to various specified categories of records. In other words, such records are excluded from the scope of the Act. There is no public interest provision in section 42. If the record is captured by one or more of the categories of records described in section 42, that is the end of the matter.
Section 42(a)(i) provides that the FOI Act does not apply to a record held by the courts and relating to, or to proceedings in, a court, other than
(I) a record that relates to proceedings in a court or such a tribunal held in public but was not created by the court or tribunal and whose disclosure to the general public is not prohibited by the court or the tribunal
;(II) a record relating to the general administration of the courts or the offices of the courts or such a tribunal or any offices of such a tribunal.
Submissions of the Courts Service
By way of background, the Courts Service described the process by which the lists are created and added to the Court Diary on the website. In summary, it said that the process starts with application papers for court matters being filed and then being allocated an appropriate date by staff at the public counter, based on the County Registrar's instructions. It said that they are then added to an internal database called the Circuit Case Management System (CCMS) and Lotus Notes diary. It said that when an existing case is adjourned in court, the court register for that Court, who is assisting the County Registrar, records the new date on the CCMS. It said that if the adjourned matter is urgent, the County Registrar will make a direction for a note to be added stating that it should be put at the top of the list for the next adjournment date. It said that the court staff assigned to the office read these notes and organise the list accordingly.
The Courts Service said that the week before the list is due to be heard, the staff assigned to the Dublin Combined Civil Office, under the supervision of the County Registrar, finalise the list according to what is in the CCMS and any other notes or instructions from the County Registrar. The relevant staff member then logs into the Legal Diary database [for the website] and completes the relevant template with the details of the cases, venue, category, date etc. The draft list for publication is sent to a relevant staff member in the Dublin Combined Civil Office who has authority to approve the list for the Legal Diary. When it has been approved, the staff member logs back into the Legal Diary database and hits the publish button and it then appears on the website. If any further last minute changes need to be made, the staff member needs to log back in and go through the process again.
The Courts Service referred to its submissions (summarised above) on the question of whether it 'holds' the records for the purposes of the FOI Act as to the basis for its position that the records are held by the Courts. It said that the records 'obviously' relate to the proceedings in Court, and that the lists are created for and on behalf of the County Registrar for the purpose of organising the lists or proceedings on the day, and for informing the practitioners, litigants and the public about these listings. It said that the Legal Diary is published for a limited time only, for the benefit of court users, and relates to information on specific court cases. It said that the information relates to the records of court proceedings and that they are, by definition, records of the Court.
In respect of the exclusions from section 42(a)(i), the Courts Service said that the first exclusion (I) simply had no application to the records, as they were created by the Courts. It said that the purpose of (I) was to retain within the scope of the FOI Act records relating to courts proceedings that emanate from outside such courts where the disclosure of which is not prohibited by the court. It referred to Minister for Justice, Equality and Law Reform v Information Commissioner [2002] in support of this position.
In respect of the exclusion at (II) for records relating to the general administration of the courts, the Courts Service said that having considered the position set out in paragraph 2.3.2 of the OIC's Guidance Note on section 42, that the records at issue must be characterised as concerning the core business of the Court. It reiterated its position that the court lists are compiled and maintained under the supervision of the County Registrar, who holds a quasi-judicial position and is independent in function, and that the records are records of the Courts and not the Courts Service. It said that the lists are closely connected with the administration of justice in that they provide information on real ongoing cases, containing the names of litigants, and reflect the status of the cases and the date on which they are listed for determination or mention. As such, its position is that the records do not relate to general administration.
The applicant's submissions
The applicant said that the records are not exempt by virtue of section 42(a)(i) because they are not held by any court under section 65(3) of the Court Officers Act 1926 because they had not been "lodged in or handed in to any court". He said that, as a matter of fact, the lists are not held on any court file whatsoever and that as they are not held by a court, or on a court file, they are not held by a County Registrar. He said that in any event, the lists fall into the first exception at (I) of section 42(a)(i) as they were created by, and belong to, the Courts Service. He referred to a notice on its website which says "The information featured on our website, with the exception of court judgements, is the copyright of the Courts Service" and that disclosure is not prohibited by any court.
The applicant noted that the lists were already published on the Courts Service's own website, to which it holds the copyright, and said that this was inconsistent, contradictory and incongruous with its refusal to release them further to an FOI request.
Furthermore, the applicant said that the lists fall within the second exception at (II) of section 42(a)(i) of the Act as they relate to the general administration of the Courts Service.
The applicant said that the above matters of fact "are not displaced by the court's alleged case tracking system".
He referred to the provisions of section 20(1) of the Courts Service Act 1998, as amended by s.43(a) of the Courts and Courts Officers Act 2002, which he said gives the Courts Service the "upper hand" when it comes to a circuit court office and the office of County Registrar. He referred to paragraphs 6.3 and 6.8 of the decision in Padraig Burke v The Courts Service [2013] IEHC 377 in support of this.
The applicant also resubmitted a submission made to the judge in the earlier High Court proceedings, dated 13 February 2024. While most of the points made in that submission refer to the previous decision-making process, and the High Court proceedings, I note two further references to case law which the applicant considers relevant. Firstly, he referred to paragraph 13 of the decision in Permanent TSB v Farrelly [2023] IEHC 255 which says "The jurisdiction of the County Registrar is delineated by the rules of the Circuit Court-¦". The applicant said that the Courts Service has not cited any rule that identifies a County Registrar duty to create or hold the lists. Secondly, he said that he believed that the lists were copied to the Courts Service so that they could be published on its website, and that these duplicates should be released in accordance with paragraph 56 of the Director of Public Prosecutions v the Information Commissioner [2021] IEHC 752.
Analysis
In order to establish whether the records at issue are excluded from the FOI Act by virtue of section 42(a)(i), the first question I must answer is whether they are records held by the courts and relating to a court or to proceedings in a court.
It is the applicant's position that the records were not lodged or handed in to any court, that they are held by the Courts Service and that they were created by the Courts Service, and that for these reasons the records are not held by the courts. I do not agree. While I have already found that the records are held by the Courts Service for the purposes of the FOI Act, I do not consider this to be in contradiction with a finding that they are records held by the courts. Given the agency-type role of the Courts Service in providing administrative and support service to the courts generally, and its role in publishing the Legal Diary specifically, it seems to me that in order to carry out this function, the Courts Service must hold and have access to certain court records. In my view, this does not stop them from being records held by the courts. Nor I do not accept that records held by a court are limited to those lodged or handed in to a court. Having regard to the independence of the County Registrar and his/her responsibility for the lists, as well as the fact that the Courts Service staff who work on the lists and put them up on the website are acting in their capacity as officers of the court, as per section 18(b) of the Courts and Court Officers Act 2009, I am satisfied that the records sought by the applicant were created by the court and are records held by the courts. I do not accept that any copyright notice on the Courts Service website is relevant to this finding.
In order for section 42(a)(i) to apply, the records must also relate to a court or to proceedings in a court; I accept that a record listing the details of cases to be heard before the County Registrar on a particular date relates to proceedings in a court.
As I have accepted that the records are held by the courts and relating to proceedings in a court, the next question to address is whether either of the exceptions at (I) or (II) apply.
The first exception is for a record "that relates to proceedings in a court or such a tribunal held in public but was not created by the court or tribunal and whose disclosure to the general public is not prohibited by the court or the tribunal". I have already found that the records were created by the court, and therefore (I) does not apply.
The second exception is "a record relating to the general administration of the courts or the offices of the courts or such a tribunal or any offices of such a tribunal". The FOI Act does not define what is meant by general administration. In the absence of such a definition, this Office considers that it refers to records which have to do with the management of the courts/a tribunal, and would include records relating to HR, finances, recruitment, ICT, accommodation, office procedures etc. I am satisfied that it does not refer to records relating to the core business of the courts i.e. the administration of justice.
I note that in our decision in Case OIC-133747, we found that the records at issue 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. It was on this basis that we considered that 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 considered the matter, I do accept that the records at issue here contain information that might serve some general administrative purposes, for example, in ensuring that the right members of staff are in place in the correct court room, with adequate ICT systems in place. However, it seems to me that while this is, to some extent, administrative in nature, the records overall do not relate to the general administration of the courts, but rather they relate to administrative functions concerning the core business of the courts. I accept the Courts Service's argument that the lists are closely connected with the administration of justice in that they provide information on real ongoing cases, containing the names of litigants, and reflect the status of the cases and the date on which they are listed for determination or mention. In addition, the position that a case is put on the list is a matter for the County Registrar and reflects a judicial determination by the County Registrar. The lists also record any adjournment given by the County Registrar and the question of whether a matter should be adjourned, how long for and on what terms is a judicial decision. For these reasons, I find that (II) does not apply.
For completeness, I should say that while I appreciate the frustration of the applicant that he cannot access records that have been previously publicly available, this is not a factor I can take into consideration for the purposes of section 42(a)(i). Furthermore, I do not accept that the factual circumstances or findings in the three court cases cited by the applicant are relevant or comparable to this case. The first two cases cited do not concern the FOI Act and I do not see their relevance to the interpretation of section 42(a)(i). In respect of Director of Public Prosecutions v the Information Commissioner, this case concerned the status of a record, copies of which were held both by the DPP and by a government department, two distinct FOI bodies, and the interpretation of section 42(f) in that context. In this current case, and given the evident agency-type relationship between the Courts Service and the courts, as set out in detail above, I am satisfied that the question of records being held by two different FOI bodies does not arise. In this case there is just one record, held by the Courts Service on an agency basis for the courts. Moreover, the wording of sections 42(a) and 42(f) are different. Subsection (f) refers to a record held or created by the DPP while subsection (a) covers record held by the Courts Service.
In conclusion, therefore, I find that the FOI Act does not apply to the records sought, by virtue of section 42(a)(i), and that the Courts Service was justified in refusing the FOI request.
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 it was justified in refusing, under section 42(a)(i) of the FOI Act, the applicant's request for the Dublin County Registrar Civil Motions Lists from 1 February 2022 to 24 May 2022 inclusive
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.
Ger Deering
Information Commissioner