Case number: CEI/08/0005
The Commissioner found that the Courts Service was acting on behalf of the Courts who were acting in a judicial capacity in relation to the information at issue. This means 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, the Commissioner has no jurisdiction to direct the release of the environmental information sought.
On 7 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 request was made under the European Communities (Access to Information on the Environment) Regulations 2007 [S.I. No. 133 of 2007]. He also cited Directive 2003/4/EC.
On 19 November 2007, the Courts Service wrote to the applicant saying that his request had been forwarded to the Principal Registrar's Office of the High Court for response. Not having received any further response, the applicant wrote to the Courts Service on 21 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.
On 28 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.
On 3 March 2008, the applicant appealed the decision of the Courts Service to my Office. He subsequently paid the statutory fee for the making of an appeal as required by Article 15 of the Regulations and my Office accepted the appeal.
The material covered by the request comprises affidavits filed in the High Court case of Galway City Council v Lackagh Rock Limited and in the case of Roadstone Dublin Limited v Kildare County Council. It is my understanding that both of these cases were judicial review applications and that these cases have now concluded.
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 was not provided to him within the one month period laid down. He stated that the basis of his appeal lies in his rights as found in NV Algemene Transport - en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [Judgement of the European Court of Justice 5 February 1963 Case 26-62].
He stated that the Courts Service does not act in a judicial capacity; rather it is the administration body for the Courts. He said that, while the Directive (Article 2) allows Member States to provide that the definition of public authority "shall not include bodies or institutions when acting in a judicial or legislative capacity", it goes on to say that "If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition." He submitted that ''As the office of the Environmental Information Commissioner has been set up I presume that the setting up of that office was not contrary to the Constitution, therefore the regulation at Article 3 sub article (2) is not a valid exclusion".
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.
My Office wrote to the Courts Service on 14 March 2008, enclosing a copy of the appeal, notifying it that the appeal had been accepted and inviting it to make submissions. My investigator asked the Courts Service to confirm that the information sought was held by it and to address the question of whether it was acting in a judicial capacity in relation to the affidavits.
In further correspondence, dated 2 October 2008, my Office asked the Courts Service for additional clarification on the handling of Court records.
The Courts Service made a submission dated 13 April 2008. Its position is that 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.
The Courts Service further argued that, even if the Regulations did apply to the court records, Article 8 of the Regulations would allow it to refuse access on the basis that disclosure would adversely affect the confidentiality of the proceedings of public authorities where such confidentiality is protected by section 46(1)(a)(i) of the Freedom of Information Act. In relation to the prohibition from disclosure of Court records, it cites the High Court case of Minister for Justice and Law Reform v The Information Commissioner 2ILRM.
In response to my Office's letter of 2 October 2008, the Courts Service reiterated its view that the information the subject of the request is held in records of the Court and not of the Courts Service. Its position is that, while it accepts that the Courts Service may be a public authority, the Courts are not a public authority. Its position is that the furnishing of court documents would require the permission of the judge under whose control they are. According to the Courts Service, the situation is the same whether the affidavits were opened in court proceedings or not.
For convenience, the key legal provisions relevant to this appeal are set out below.
The Directive guarantees a right of access by the public to environmental information held by or for public authorities; the Directive also sets out "the basic terms and conditions of, and the practical arrangements for, the exercise of this right". The Directive has been given effect in Ireland by way of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007), made by the Minister for the Environment, Heritage and Local Government.
Article 2 of the Directive sets out the Definitions for the purposes of the Directive and includes at paragraph 2
'"Public authority" shall mean:
(a) government or other public administration, including public advisory bodies, at national, regional or local level; ...
Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.'
Article 3 (1) of the Regulations provides as follows:
'..."public authority" means, subject to sub-article (2) -
(a) government or other public administration, including advisory bodies, at national, regional or local level, ....
(2) Notwithstanding anything in sub-article (1), "public authority" does not include any body when acting in a judicial or legislative capacity.'
Article 14 of the Regulations provides that, in performing functions under the Regulations, public authorities "shall have regard to any guidelines published by the Minister". The Minister has published such guidelines and, to the extent relevant, I have had regard to these guidelines in the course of this appeal.
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 has 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 provisions of article 10(7) operate where no decision is notified and a decision refusing the request is deemed to have been made so that the applicant can exercise the right to internal review under Article 11 of the Regulations. I note the applicant's reference to the European Court's ruling on "direct effect". My understanding is, however, that for a Directive to have direct effect and to give an individual enforceable legal rights in national courts, there is a number of requirements. The requirements for direct effect include (i) that the period for transposing the Directive must have expired; (ii) that the Directive must not have been transposed or must have been incorrectly transposed; (iii) that its provisions must be unconditional, sufficiently precise and not subject to the taking of any further measures; (iv) that it must confer a right on an individual as against a Member State (See Case 236/92 Comitato di Coordinamento per la Difesa della Cava and others v. Regione Lombardia and others  ECR I-00483). Accordingly, I do not see how failures in the handling of the request by the Courts Service would, of themselves, provide a conclusive reason as to why I am bound to uphold the appeal as the applicant appears to be arguing.
As Commissioner, I must review the decision to refuse the information and make a binding decision as required under paragraph 3 of Article 6 of the Directive and Article 12(5) of the Regulations and affirm, vary or annul the decision as required by article 12(5) of the Regulations. My investigator gave the applicant her preliminary views by letter of 13 May 2008. I note that, although he discussed the case in the course of a phone conversation with my staff in September 2008, the applicant has not responded to the invitation to make a further submission nor has he withdrawn his appeal. I take it that he requires a formal, binding decision.
I have considered the applicant's interpretation of the second sentence qualifying paragraph 2 of Article 2 of the Directive. Although it is not quite clear what point is being made in the submission on this, I consider that the provision must, like any other, be read in accordance with the normal rules of statutory interpretation. Thus, the plain meaning is that, if certain conditions are present, part of the Article provides that Members States may exclude a class of bodies or institutions (in addition to those acting in a judicial or legislative capacity) from the definition of public authority. There is no obligation on Ireland to take any particular action under that part of the Directive and it has not excluded any additional bodies from the definition. In any event, I am satisfied that the first sentence of paragraph 2 is independent of and not qualified by the second, separate sentence.
Therefore, given that Ireland exercised its option in article 3(2) of the Regulations not to include bodies acting in a judicial capacity in the definition of "public authority", the effect of the Regulations and the Directive is that, if the body is acting in a judicial capacity in holding environmental information in the form of the affidavits requested, the Regulations do not apply to it.
The Directive gives effect to one part of the 1998 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention). "The Aarhus Convention: an Implementation Guide" [ECE/CEO/73] comments on the definition of public authority as follows:
"Bodies or institutions acting in a legislative or judicial capacity are not included in the definition of public authorities. This is due to the fundamentally different character of decision making either in a legislative capacity, where elected representatives are more directly accountable to the public through the election process or in a judicial capacity, where tribunals must apply the law impartially and professionally without regard to public opinion. Many provisions of the Convention should not apply to bodies acting in a judicial capacity in order to guarantee an independent judiciary and to protect the rights of parties to judicial proceedings...".
Thus, it would appear that the Convention envisaged that bodies acting in a judicial capacity might be treated differently to other bodies.
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. Sections 5 and 6 of the Courts Service Act, 1998 set out the functions of the Courts Service. I note also that section 9 of the Courts Service Act provides that the Service shall not exercise any power so as to interfere with the conduct of the business of the courts required by law to be transacted before a judge. I have considered the statutory position and do not agree with the 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. The information sought is in the form of documents lodged in relation to court proceedings and I am satisfied that the Courts Officers Act applies to affidavits filed in the High Court in judicial review or other proceedings.
My investigator put it to the Courts Service that, if the affidavits were read in open court, they might lose whatever "protection" they would have had. According to the Courts Service, the Roadstone Dublin Ltd v Kildare County Council case did not go to hearing while the Galway City Council v Lackagh Rock Ltd. case did go to hearing.
The position re court records was considered by the High Court in the case of Minister for Justice and Law Reform v The Information Commissioner 2ILRM.1 in which the Information Commissioner's decision to direct release of court records was quashed. Finnegan J. held that the Information Commissioner 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.
The approach of the learned judge in this case has been seen by some commentators as being overly restrictive (see McDonagh, Freedom of Information Law, Second Edition, Dublin: Thompson Round Hall, 2007). However, as I understand it, it represents the law in Ireland in relation to access to court records.
Having considered the matter carefully, my finding is that the affidavits sought are held by the Courts Service on behalf of the Courts. the Courts, in holding the information in connection with the administration of justice, are acting in a judicial capacity and thus are not a public authority under article 3(2) of the Regulations. Accordingly, it is not necessary for me to make a ruling as to whether Article 8(a)(iv) of the Regulations applies in this particular case to protect the confidentiality of the proceedings of public authorities as argued by the Courts Service. In addition, I consider that the application of Article 4(2) of the Directive - adverse affect on the course of justice - as raised by the applicant does not fall to be considered in view of my finding that the Regulations do not apply to these records held on behalf of the Courts.
I have considered 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 do not consider that I have jurisdiction to waive this fee or to refund it in this case.
In accordance with article 12(5) of the Regulations, I have reviewed the decision of the Courts Service in this case and I find, for the reasons detailed above that it was justified in its decision to refuse the request. Accordingly, I hereby affirm the Courts Service's decision.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision is given.
Commissioner for Environmental Information
5 December 2008