Whether the Courts Service was justified in its decision to refuse an application under section 10 for a statement of reasons as to why a particular court order did not issue to the applicant until a particular date.

20/03/2019

Background

On 22 May 2018, the applicant made an application under section 10 of the FOI Act for a statement of reasons as to why a court order prescribed on a date in February 2018 was not issued to him until a date in March 2018. In its decision of 5 June 2018, the Courts Service refused the application pursuant to the provisions of section 10(2)(a) which provides that nothing in section 10 requires the giving to a person of information contained in an exempt record. Nevertheless, it provided some information outside of the FOI Act about the process followed in preparing the particular court order, which it described as a very complex composite order.

On 12 June 2018 the applicant sought an internal review of that decision, following which the Courts Service affirmed the original decision to refuse the application for a statement of reasons. On 3 December 2018 the applicant sought a review by this Office of the decision of the Courts Service.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Courts Service in connection with his request. I have also had regard to the correspondence between this Office and both the applicant and the Courts Service on the matter.

Scope of Review

This review is concerned solely with whether the Courts Service was justified in its decision to refuse to provide the applicant with a statement of reasons as to why a particular court order was not issued to him until a particular date.

Preliminary Matter

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking the statement of reasons in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

Analysis and Findings

Section 10

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 to 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. 

In its submission to this Office, the Courts Service essentially argued that all of the records held on the relevant court file are court records to which the Act does not apply by virtue of section 42(a)(i) and as such, it is not required to provide a statement of reasons pursuant to section 10(2)(a). However, this argument is based on a presumption that the giving of a statement of reasons would necessarily require the disclosure of information contained in those 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 must 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.

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. The Courts Service has not done so in this case.

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 to 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).

All that being said, it seems to me that the fundamental difficulty facing the applicant in his efforts to obtain reasons for the act identified in his application is that the act identified is not, in my view, an act of the Courts Service to whom the application was made but is, instead, an act of the courts.

The Courts Service provides administrative and support services to the courts. 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. According to the Courts Service, court registrars are employed by it as civil servants of the State in accordance with section 23 of the Courts Service Act 1998. In addition, each registrar of the High Court is a principal officer within the meaning of section 3(3) of the Courts Officers Act 1926. The Courts Service explained that a court registrar 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 added that when preparing and drafting court orders, Courts Service staff such as registrars are acting as officers of the Court in carrying out the directions of the Court. 

Having carefully considered the act identified by the applicant and having regard to the explanation provided by the Courts Service of its functions and the role and functions of court registrars, it seems to me that, in the circumstances, the Courts Service staff were acting in their capacity as staff of the Court. Accordingly, I find that the Courts Service was not required, under the provisions of section 10 of the FOI Act, to provide a statement of reasons as to why a Court Order did not issue to the applicant until a date in March on the ground that the act identified was not an act of the Courts Service.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Courts Service to refuse to provide a statement of reasons as to why a particular court order was not issued to the applicant until a particular date.

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
20 March 2019