Decision
Mr Ken Foxe, Right To Know CLG and Judicial Council
From Office of the Information Commissioner (OIC)
Case number: OIC-136148-M0L2F7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-136148-M0L2F7
Published on
Whether the Judicial Council was justified in refusing the applicant’s request for information relating to complaints made under Part 5 of the Judicial Council Act 2019 on the ground that the FOI Act does not apply to the record sought, pursuant to section 94(1) of the Judicial Council Act 2019
28 June 2023
The Judicial Council is an independent body whose members are all of the judges in Ireland and who constitute a separate and independent branch of Government. It was established under the Judicial Council Act 2019. In a request dated 4 January 2023, the applicant sought details of the number of complaints received by the Judicial Council to the date of his request, to include the month in which the complaint was received, the level of judiciary against whom the complaint was made, a brief anonymised line summary of the nature/context of the complaint, and the status of the complaint.
In a decision dated 31 January 2023, the Judicial Council said it had decided to refuse the request under sections 41 and 94 of the Judicial Council Act 2019 and under section 35 of the FOI Act. It acknowledged some of the information sought will be included in the Judicial Conduct Committee’s Annual Report 2022 which must be submitted to the Minister for Justice by 30th June 2023 but said that it will be more limited information given that confidentiality considerations will also apply. The applicant sought an internal review of that decision on 3 February 2023. He said he was seeking only statistical information of a type which the Judicial Council said will be published in its annual report and that he had made clear that he was happy for the information to be anonymised sufficiently such that it could not be used to identify any individual judge.
On 23 February 2023, the Judicial Council affirmed its refusal of the request on the ground that the FOI Act does not apply to the records sought, pursuant to sections 41 and 94 of the Judicial Council Act 2019. On 3 March 2023, the applicant applied to this Office for a review of the Judicial Council’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 Judicial Council as outlined above 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.
The scope of this review is concerned solely with whether the Judicial Council was justified in refusing the applicant’s request for certain information relating to complaints made on the ground that the FOI Act does not apply to the records sought, pursuant to sections 41 and 94 of the Judicial Council Act 2019.
Section 94 of the Judicial Council Act 2019 provides as follows:
(1) Without prejudice to the exemption for records held by the courts, the Freedom of Information Act 2014 shall not apply to a record relating to the making or investigation, or the resolution by informal means, of a complaint under Part 5 or an investigation pursuant to a referral under section 59 unless—
a) the record was created before the making of the complaint or the initiation of the investigation under section 59, as the case may be, or
b) the record relates to the expenses of the Judicial Conduct Committee or a member thereof or a panel of inquiry or a member thereof or other matters concerning the general administration of that Committee or a panel of inquiry.
(2) Subsection (1) applies to a record held by—
(3) In this section “record” has the meaning it has in the Freedom of Information Act 2014 .
In its submissions, the Judicial Council said it had identified one relevant record, comprising an excel spreadsheet that contains certain information relating to complaints made. It said the record was created and is updated by the Registrar to the Judicial Conduct Committee to record the making of complaints arising from, and since, the commencement of Part 5 of the Judicial Council Act 2019 on 3 October 2022. Part 5 of the 2019 Act deals with complaints relating to judicial misconduct. The Judicial Council submitted that all of the information in the record relates to “the making or investigation, or the resolution by informal means, of a complaint under Part 5” as required by Section 94(1).
With reference to the meaning of ‘relating to’ within Section 94(1), the Judicial Council argued that the ordinary meaning of this term means concerning or connected with the making or investigation of a complaint. It said case law authority also provides that the words ‘relating to’ are very wide and are equivalent to ‘connected with’ or ‘arising out of.’ It said this meaning is consistent with the content of the record concerned. The Judicial Council added, for completeness, that there has not been a resolution by informal means of a complaint, nor has there been an investigation initiated under Section 59(1)(a) and therefore there is no information of this type contained in the record.
The question I must consider is whether the record in question contains information a record relating to the making or investigation of a complaint (my emphasis). In EH v the Information Commissioner [1999] 107 MCA the High Court considered the meaning of “relate to” in the context of whether the FOI Act 1997 conferred a right of access to records created before its commencement where such records relate to personal information about the person seeking access to them. In his decision, O’Neill J. held as follows:
“In my view the test to be applied to determine whether or not a record “relates to” is … whether there is a sufficiently substantial link between the requesters personal information (as defined in the act) and the record in question.”
He added:
“A requester has a right of access to “records”. The record will generally speak for itself. Where a doubt or ambiguity exists, as to the connection of the record to the requester, a consideration of factors such as the circumstances in which the record was created, the purpose for which the record was created and whether it was created with the affairs of a particular individual in mind, may inter alia, assist in determining “whether there is a sufficiently substantial link between the requesters personal information (as defined in the Act) and the record in question.”
I consider it appropriate to apply a similar test to determine whether the record at issue in this case can be said to relate to the making or investigation of a complaint under Part 5 of the Judicial Council Act 2019, i.e. is there a sufficiently substantial link between the making of a complaint and the record in question? I am satisfied that there is. As the Judicial Council explained in its submissions, the record was created and is updated by the Registrar to the Judicial Conduct Committee to record the making of complaints arising from, and since, the commencement of Part 5 of the Judicial Council Act 2019. All of the information contained in the record comprises details of complaints that are recorded on the record when received. The record would not exist if no complaints were received.
In the circumstances, I find that the record at issue is a record relating to the making or investigation of a complaint under Part 5 of the Judicial Council Act 2019. I am also satisfied that paragraphs a) and b) of section 94(1) of the 2019 Act do not apply. Paragraph b) provides that section 94(1) does not apply to record relating to matters concerning the general administration of the Judicial Conduct Committee at Committee. While the term general administration is not defined in the 2019 Act, this office understands the term as used in the FOI Act to refer to records which have to do with the management of an FOI body such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. The record at issue cannot, in my view, be reasonably described as relating to the general administration of the Judicial Conduct Committee
In conclusion, therefore, I find that the FOI Act does not apply to the record sought, pursuant to section 94(1) of the Judicial Council Act 2019. For the sake of completeness, I note that in his application to this Office, the applicant noted that the Judicial Council confirmed that information of the type sought will likely be published in its annual report and he therefore questioned what possible harm could be caused through its release under FOI. While the applicant would appear to have a valid point, it is not open to me to direct the release of a record with which the FOI Act does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Judicial Council to refuse the applicant’s request for information relating to complaints made under Part 5 of the Judicial Council Act 2019 on the ground that the FOI Act does not apply to the record sought, pursuant to section 94(1) of the Judicial Council Act 2019.
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