Decision
Ms B and Courts Service
From Office of the Information Commissioner (OIC)
Case number: OIC-154881-R1M3G5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154881-R1M3G5
Published on
Whether the Courts Service was justified in refusing access to records relating to court proceedings in two courts involving the applicant under section 42(a)(i) of the FOI Act on the ground that the Act does not apply to the records sought
1 July 2025
In a request dated 12 November 2024, the applicant sought access to records relating to court cases involving her in two named Courts. She specifically sought access to (i) Digital Audio Recordings (DARs) of all relevant hearings dating back to November 2015, (ii) Court Orders and Instructions from January 2021 to the date of her request, and (iii) Rulings or undertakings issued in relation to her cases during this period.
On 13 November 2024, the Courts Service refused the request pursuant to section 42(a)(i) of the FOI Act which provides that the FOI Act does not apply to certain records held by the courts. The applicant applied for an internal review of that decision, following which the Courts Service affirmed its decision. On 23 December 2024, the applicant applied to this Office for a review of the Courts Service’s decision.
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 and to the correspondence between this Office and both parties 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 its decision to refuse access, under section 42(a)(i) of the FOI Act, to the records sought by the applicant relating to her court cases.
In her application to this Office, the applicant expressed her dissatisfaction with the courts and her experience whilst engaging with them. It is important to note that this Office has no role in the investigation of complaints regarding the manner in which public bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by public bodies. I note that in both decision letters issued to the applicant, the Courts Service provided details of how the applicant may seek assistance with her request from the Courts outside of the FOI process and provided contact details for the relevant court offices. The role of this Office is confined to a consideration of the decision taken by the Courts Service on the applicant’s FOI request.
Section 42(a)(i) of the Act provides that, subject to two exceptions, the FOI Act does not apply to records held by the courts that relate to a court or to proceedings in a court. The first exception concerns records that relate to proceedings in a court held in public that were not created by the court and whose disclosure to the public is not prohibited by the court. The second exception concerns records relating to the general administration of the courts or the offices of the courts. While the Act is silent on the meaning of general administration, this Office considers that it refers to records which are concerned with the general administration of the courts or the offices of the courts, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation and office procedures and the like. This Office takes the view that “general administration” does not refer to records relating to matters concerning the core business of the courts.
In its submissions to this Office, the Court Service said that as part of her original request, the applicant included with her correspondence an email thread between herself and the two relevant court offices. It said it is apparent from this email thread that the applicant has matters before the family law courts and is seeking access to records in relation to those cases. It said it is evident that the records sought relate to ongoing proceedings before the family courts and are not related to the general administration of the courts. It said the records are held on the court file and are under the control of the Courts, and not the Courts Service. It said that as such, the records at issue are not administrative in nature but inherently linked to court proceedings. It said this is not merely the Courts Service’s view, but also a distinction set out in statute and in case law. It referenced section 65 of the Court Officers Act, 1926 which states that“all proofs and all other documents and papers lodged in or handed in to any court in relation to or in the courts of the hearing of any suit or matter shall be held or at the order and disposal of the judge or the senior of the judges by or before whom such suit is heard” . It further referenced the judgment of the High Court inThe Minister for Justice Equality and Law Reform v The Information Commissioner [2001] IEHC 35. In its judgment, the Court found that section 65 of the Court Officers Act, 1926 “creates a general prohibition on the disposal of documents but from which the Judge can dispense: until there is such a dispensation there is a prohibition in place within the meaning of section 46(a)(i)” [of the FOI Act 1997, which is the equivalent of section 42(a)(i) of the FOI Act 2014].
The Courts Service added that while matters before the civil and criminal courts are generally held in public, access to court records is restricted to the extent that the restrictions are necessary and proportionate to safeguard judicial independence and court proceedings. It said family law matters, which is the type of court record sought in this case, on the other hand, are heard ‘in camera’ with the exclusion of members of the public, as the affairs of all family law cases are confidential. It said access rights to records of all courts are governed by legislation, rules of court and practice directions, and it is ultimately a matter for the presiding judge to dispense with restrictions of access. It said any application for access to court records must be made directly to the relevant court outside of the FOI Act. It said certain material held on the court file, such as expert testimony/ reports ordered by the court, may only be accessed following application to and with the approval of the court.
The Courts Service further said that recordings of court proceedings and/or trial transcripts are also deemed to be ‘records of the court’ and under the control of the courts. It said special procedures are in place for any party who wishes to apply for access to a recording of court proceedings (also known as the “DAR” or digital audio recording). It said any request for access to a recording of court proceedings must be made by formal application to the trial judge in the proceedings, and on notice to the other party or parties concerned. It said it is a matter for the judge to decide whether, and in what format, access to a recording of court proceedings is provided and that persons wishing to have access to a court record in court proceedings to which they are a party should firstly make enquiries at the court office concerned outside of the FOI Act.
In her application for a review, the applicant said access has been refused to the records at issues despite repeated requests and adherence to required application protocols. She said this includes the obstruction of access to court files and DARs related to proceedings that directly impact her rights and those of her son. She said the relevant courts refused her application seeking access to the records. She said she believes the district court continues to base its decisions on tampered or altered records, further exacerbating the procedural bias she has experienced. She said her applications for access to the records are essential to challenge these irregularities and uphold her rights as a lay litigant and as the primary advocate for her child’s welfare. In subsequent correspondence with this Office, she said the refusal to provide the records significantly impairs her ability to prepare for ongoing legal proceedings, affects her rights as a lay litigant, and further ensures that the 7-year data timeframe ensures required data will be deleted from records causing harm to herself and her child.
It is important to note here that pursuant to section 13(4) of the FOI Act, any reason that a requester gives for a request and any belief or opinion of the FOI body as to the reasons for the request must be disregarded. This means that in this case, I cannot have regard to the applicant's motives for seeking access to the records at issue. If section 42(a)(i) of the Act applies, then the Act simply does not apply to the records and no right of access exists under the Act.
Having regard to the submissions of the Courts Service and to the nature of the records sought, I am satisfied that they are records held by the courts and relate to proceedings in a court and that the exceptions to section 42(a)(i) do not apply. Accordingly, I find that the Courts Service was justified in its decision to refuse the request under section 42(a)(i) of the FOI Act.
For the sake of completeness, I note the submissions of the Courts Service that some court records can be sought, outside of the FOI process, on payment of a fee as prescribed by the Minister for Finance and the Minister for Justice in the relevant Regulations. It said the local court offices will be more familiar with this particular case and ongoing assistance will be provided insofar as it is reasonable and appropriate. I would encourage the applicant to make further contact with the local courts to determine what records might be available to her and how she might access them.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Courts Service to refuse access to the records sought under section 42(a)(i) of the FOI Act on the ground that the Act does not apply to the records.
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