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Annual Report 2008 - Text
Peter Sweetman & Associates & Courts Service (Case CEI/08/05)
Access to environmental information held by the Courts Service; whether the Courts Service comes within the definition of "public authority" in Article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007; whether the Courts Service was acting in a judicial capacity in relation to the environmental information sought.
Background
In November 2007, the applicant addressed to the Chief Registrar of the Courts Service a request for environmental information, namely affidavits which had been submitted by the parties in two High Court cases. The Courts Service wrote to the applicant saying that his request had been forwarded for response to the Principal Registrar's Office of the High Court . Not having received any further response, the applicant wrote to the Courts Service in January 2008 requesting a review of the decision which was deemed to be a decision to refuse in accordance with article 10(7) of the Regulations. In February, 2008 the Principal Registrar of the High Court informed the applicant that, by reference to article 3(2) of the Regulations, the Regulations did not apply to the Courts Service in respect of the affidavits sought. The applicant appealed the decision of the Courts Service to my Office. Having subsequently received the statutory fee for the making of an appeal as required by Article 15 of the Regulations, my Office accepted the appeal.
The Information
The material covered by the request comprised affidavits filed in two High Court cases involving local authorities and quarry operators. It is my understanding that both of these cases were judicial review applications and that these cases had concluded at the time of the request.
The Applicant's Position
The applicant submitted that the Courts Service failed to comply with the Regulations and with the Directive in that its refusal of access to the information and the reasons therefor were not provided to him within the one month period laid down. He stated that the Courts Service does not act in a judicial capacity; rather it is the administration body for the Courts. He referred to Article 4 (2) (c) of the Directive which provides for refusal of a request where disclosure of information would adversely affect the course of justice. He argued that the Directive provides that such grounds for refusal be interpreted in a restrictive way, taking account of the public interest served by disclosure.
The applicant further submitted that the charging of the fee of €150 for an appeal to my Office is not in compliance with terms of the Directive and asked that it be refunded.
Comment
The Courts Service did not deal with the request in accordance with the requirements of the Regulations i.e. by making a decision under article 7 of the Regulations and notifying it to the applicant within one month. In my opinion, this was not a case where, because of the volume or complexity of the information requested, an extension of the normal period was necessary. While the Courts Service apologised to the applicant for the delay, the fact that it took well over three months to notify the applicant of its position is unacceptable.
The Courts Service Position
The Courts Service argued court records are under the control of the Judiciary. It quoted section 65(3) of Court Officers Act, 1926 -
"all proofs and all other documents and papers lodged in or handed in to any court in relation to or in the course of the hearing of any suit or matter shall be held by or at the order and disposal of the judge or the senior of the judges by or before whom such suit is heard."
According to the Courts Service, the affidavits requested were lodged in court and form part of the court records. It said that, in administering justice, including the conduct of judicial review, the courts are acting in a judicial capacity. The Court records are under the control of the relevant High Court judges; they are held by the Courts Service on behalf of the Courts.
Appeal Decision
The main question to be considered was whether the Courts Service is a "public authority" for the purposes of the Regulations. If the answer was 'no' , then it was not necessary to consider any grounds of refusal which might apply or any public interest considerations affecting the release of the information.
In the Regulations, the definition of 'public authority ' specifically excludes 'any body when acting in a judicial or legislative capacity'.
There is no doubt that the Courts Service does not have a judicial function and that it is a public authority when carrying out its administrative work. However, I could not agree with the applicant's contention that the Courts Service is acting in an administrative capacity when it is holding court papers under section 65(3) of the Court Officers Act, 1926 as in this case.
I considered the position on access to court records as determined in the High Court in the case of Minister for Justice and Law Reform v The Information Commissioner [2002 2ILRM.1 in which the Information Commissioner's decision to direct release of court records was quashed. Finnegan J. held that my predecessor was incorrect in finding that court records not prepared by the court could be released under FOI if there was no specific judicial prohibition on release and the proceedings had been held in public. He found that the disclosure of information (a transcript of proceedings) to the general public was prohibited even though the case had been heard in open court. Although there was no specific prohibition by the trial judge or under the Rules of the Superior Courts, the High Court expressly rejected the argument that a specific prohibition had to be imposed by the court. It held that a general prohibition was enough and that the practice within the Courts of confining access to court records to the parties and their representatives could amount to a prohibition on access.
I found that the Courts Service was acting on behalf of the Courts which, in turn, were acting in a judicial capacity in relation to the information at issue. That meant that, in relation to the holding of the affidavits, the Courts Service is excluded by sub-article 2 of Article 3 from the definition of public authority for the purposes of the Regulations. Accordingly, I had no jurisdiction to direct the release of the environmental information sought.
In relation to the applicant's submissions on the requirement of article 15(3) of the Regulations that a fee of €150 be charged for the making of the appeal to my Office, I did not consider that I could, as Commissioner, waive this fee or refund it in this case.
I affirmed the decision of the Court's Service.
