Case 98019 - Mr. AAR and the Department of Justice, Equality and Law Reform

Pre-commencement record - whether containing personal information about the requester - application of section 6 - record held by the courts - application of section 46.

Case Summary

Facts

The requester sought access to the unproven will of a deceased person, a court order (which had been created before the commencement of the Act) and all official documents relating to these matters. The Department granted access to all records except the will which, it stated, it did not hold and the court order which, it claimed, was excluded under section 46(1)(a) of the Act.

Decision

The Commissioner accepted that the Department did not have a copy of the will sought by the requester. A right of access to records created prior to the commencement of the Act arises, under section 6(5) of the Act, where access is necessary or expedient in order to understand records created after commencement or where the record relates to personal information about the requester. The requester had not produced or sought any record created after 21 April 1998 which would have required the release of the court order in order to be understood. The Commissioner was satisfied that the record in question did not contain personal information about the requester. He commented that, although a record may impact on a claim of a requester, it does not necessarily mean that it contains personal information about him. The Commissioner found that the record did not fall to be released under section 6(5) of the Act and, in the circumstances, that it was unnecessary for him to consider the application of section 46 to the records.

Date of Decision: 22.10.1998

DECISION

Background:

Mr AAR applied to the Department of Justice, Equality and Law Reform on 22 April 1998 under the Freedom of Information Act 1997 for access to the unproven will dated 5 February 1980 of a named deceased person ("the Deceased") and a court order of 12 October 1989. He also sought the release of all official documents and official decisions made by the Minister and the Department in relation to the matters. He stated that he required the records because they were central to the destruction of a claim which he had made against the estate of the Deceased. Three categories of records relevant to Mr AAR's request were located by the Department and they were as follows: Minister's Constituency Office, Secretariat Division and Courts Division. These records were released to Mr AAR at the initial decision stage. However, in the initial decision Mr AAR was informed that the main thrust of his request related to a court document as defined under section 46 of the Act and as such it was excluded from the provisions of the Act. He was informed that it might be possible for him to apply to the court directly for access to the document.

Mr AAR applied for an internal review of this decision. In his letter of application for internal review, Mr AAR stated that the document was not covered by section 46 and also sought the unproven will dated 5 February 1980 of the Deceased. He claimed that the documents impacted on his claim on the Deceased's estate. A decision following internal review was made on 19 June 1998. In relation to the court order, the decision was that the court order was one excluded under section 46(1)(a) of the Act. In relation to the unproven will of the Deceased, Mr AAR was informed that the Department did not hold a copy of the document.

Mr AAR applied to the Information Commissioner for a review of the decision made by the Department on 23 June 1998. Mr AAR stated that the decision on internal review was an error as Section 46 referred to records for the purpose of the Tribunals of Inquiry and the record he sought was not subject to a Tribunal of Inquiry. He also stated that the record was not created by the court, but rather had been created by a solicitor for his client and that there was no confidentiality clause in the record and no prohibition on its release. Mr AAR made further submissions to the Commissioner's Office on 22 July 1998 stating that his appeal was based on the refusal to grant him access to the court order of 12 October 1989 under section 46(1)(a). He stated that the Department erred in law because of the failure to use section 46(1)(a)(I) and the record in question was not created by the court. He said that the Circuit Court had no part in creating the record and it should be released. He argued that before the head of the public body refused to release the record consideration should have been given to Sections 19(3), 26(3), 27(3) or 28(3) pursuant to section 29 under Part III. He said that at the outset his claim should have been dealt with under section 6(8) of the Act. He also suggested that, before the Information Commissioner decided the matter, he should refer the matter to the High Court. He requested that the Commissioner enter the premises under section 37 to preserve the record and to ascertain if the unproven will of the Deceased was on the premises of the Department. He said that, under the terms of the court order, the Department was empowered to get a copy of the will. He therefore requested the Commissioner to direct the Department to get him a copy of the will. He included a Notice of Appearance in a Land Commission matter which he stated entitled him to the court order and the unproven will.

There is only one record at issue in this case - the court order of 12 October 1989. The Department and the County Registrar say that they do not have a copy of the unproven will dated 5 February 1980 of the Deceased and I have no reason to dispute this. The background to the court order is set out in some detail in a letter written by the County Registrar to Mr AAR on 17 November 1997. A Civil Bill in the case of third parties was issued on 15 March 1988 and challenged the validity of the will of the Deceased which was dated 24 September 1979 and was probated on 18 September 1981. The case came before the court on 12 October 1989. The County Registrar stated that prior to the hearing a written consent was entered into between the parties and the court made a formal order as follows "Condemn will of 24th September 1979. Admit in solemn form will of 5th February 1980. Receive Consent and make a Rule of Court". This Office has been furnished with a copy of the court order of 12 October 1989 which includes the Consent as a schedule to the court order. The County Registrar also informed Mr AAR that no application had been made to have the will of 5 February 1980 probated. However, the County Registrar refused to release the court order to Mr AAR as he was not a party to the proceedings. I would, however, make the observation that section 6(8) of the Freedom of Information Act stresses that nothing in the Act should prohibit or restrict a public body from giving access to a record otherwise than under the Act where this is not prohibited by law. I am not aware of any law prohibiting access to the record in question.

The first issue to be addressed in this case is that the record in question was created in October 1989 many years prior to the commencement of the Act. It is a matter of fact that the record in question was so created. Under section 6(4) of the Freedom of Information Act, 1997 a right of access only exists to records created after 21 April 1998 and under section 6(5) of the Act the right of access also arises where:

"(a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or (b) records created before such commencement relate to personal information about the person seeking access to them." The right of access to the record only arises if it is necessary or expedient in order to understand records created after such commencement or the record relates to personal information about Mr AAR. Mr AAR has suggested that releasing personal and official records after 21 April 1998 would make no sense without the release of records prior to the commencement date. He also said that the court order and the will contain personal information because the documents had a direct and adverse bearing on his claim on the Deceased's Estate which led to the collapse of his claim.

Mr AAR has not however produced any record or sought any record created after 21 April 1998 which would require the release of the court order in order to be understood. I consider therefore that the court order does not fall within section 6(5)(a).

Mr AAR states that the record in question contains personal information because it had a direct and adverse bearing on his claim However, this is based on a misinterpretation of the term "personal information". Under section 2 of the Act personal information means " ...information about an identifiable individual that -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by is as confidential....."

The fact that the document in question may have had an impact on his claim does not mean it relates to personal information. Many records could impact on a claim without containing personal information. The question is whether the record contains personal information about Mr AAR. Having reviewed the copy of the record supplied to this Office, I am satisfied that the record does not relate to personal information about Mr AAR. The record does not fall to be released under section 6(5)(b). In these circumstances, I have decided that it is not necessary for me to consider the position under section 46 of the Act. I also find it unnecessary to examine the record under Part III of the Act and I reject Mr AAR's submission on that point. I do not consider it necessary to refer the matter to the High Court as suggested by Mr AAR. I also do not consider it necessary to enter the premises of the Department to preserve the record or to ascertain if the unproven will is on the premises.

As I have already mentioned, the Department and the County Registrar say that they do not have a copy of the unproven will of the Deceased. Having reviewed the court order and consent in this case, I do not find that the Department is empowered to obtain a copy of the will, and I refuse Mr AAR's request for a direction that they get him a copy of the will.

Submissions

 

Findings

 

Decision

I find as a matter of fact that the record in question, the court order of 12 October 1989, is a record created before the commencement of the Act. I decide that Mr AAR is not entitled to access to that record on the basis that the record was created prior to the commencement of the Act and the record does not come within the provisions of section 6(5) of the Act set out above.

Information Commissioner

22 October 1998