Whether the Courts Service was justified in its decision to refuse access to records held by the Office of Wards of Court under section 42(a)(i) of the Act, on the ground that the Act does not apply to the records sought

10 June 2022

Background

This case has its background in wardship matters concerning the applicant's late son. The High Court may provide wardship to persons who, whether by reason of mental capacity or infancy, are deemed by the Court to be incapable of managing their affairs for themselves. The purpose of wardship of the Court is to protect such persons and their property.

In a request dated 8 September 2021, the applicant sought the following information relating to wardship matters:

-�1. Confirmation of the number of Ward of Court Estates, to which Section 189 of the [Taxes Consolidation Act 1997] applied, on which an Exit Tax liability that arose post the death of the Ward was paid by the Accountants Office and which said Exit Tax liability was subsequently refunded to the Estate of the Ward of Court by the Revenue Commissioners.

2. Further to no. 1 above, confirmation of the dates the Exit Tax was paid by and the date the Exit Tax was refunded to the Estates of the Wards of Court.-�

In a decision dated 14 September 2021, the Courts Service refused the applicant's request under section 42(a)(i) of the FOI Act 2014, on the ground that the records sought are court records to which the Act does not apply. Following an internal review request, the Courts Service affirmed its original decision under section 42(a)(i) and also cited section 15(1)(a) of the Act. I note that in its decision letter dated 27 October 2021, the Courts Service provided some information relating to the first part of the applicant's request outside of FOI. On 24 February 2022, 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 correspondence between the applicant and the Courts Service as outlined above, and to communications between this Office and both the applicant and the Courts Service on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In his application to this Office, the applicant confirmed that he had already been given the number of Ward of Court Estates to which section 189 [of the Taxes Consolidation Act 1997] applied who have passed away since 2016 [outside FOI]. He said he now sought:

-�1. The number of those Estates where Exit Tax was paid on foot of a calculation post the passing of the Ward in relation to the gain in the value of the Ward's funds

2. An application for a refund of that Exit Tax was made by the Wards of Court Office and/or the Accountant's Office and the Exit Tax was refunded.

3. A copy of the correspondence exchanged between the Wards of Court Office and/or the Accountant's Office and the Revenue Commissioners in relation to the refund or non-refund of Exit Tax-�.

For the benefit of the applicant, I wish to explain that my review is confined to a consideration of the decision taken by the Courts Service on the request that was made to it. It is not possible for the applicant to amend or widen the scope of that request at review stage.

Accordingly, 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 Act and/or section 15(1)(a) of the Act, to records that contain the information the applicant sought in his request of 8 September 2021 relating to wardship matters.

Preliminary Matters                                                                        

As I have indicated above, the applicant's request was a request for information. I wish to clarify that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, the applicant set out in his submissions to this Office details of why he was seeking access to the information. 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 access to the information 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 to this case).

Analysis and Findings

Section 42(a)(i)

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 general 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 have to do with management of the courts or the offices of the courts, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like.

In his correspondence with this Office, the applicant submitted that he was not seeking any specific information relating to any individual Ward of Court and that he had no issue with appropriate redactions being made. The applicant said he did not accept that information in redacted form could be considered to constitute a record held by the courts and relating to, or to proceedings, in a court.

In its submissions to this Office, the Courts Service said that the records at issue relate to the personal tax affairs of deceased Wards of Court which are filed on each individual's wardship file held by the Office of Wards of Court. It explained that the Office of Wards of Court is an office attached to the President of the High Court and, subject to the directions of the President of the High Court, is responsible for the supervision of the affairs of persons taken into wardship under the direction of the High Court.

In case 97290, I found that the FOI Act did not apply to records relating to the wardship of the applicant's mother that were held on a court file by the Office of Wards of Court, pursuant to section 42(a)(i) of the Act.

Having regard to the submissions of the Courts Service in this case, I am satisfied that the records at issue are held by the courts and that they relate to a court or to proceedings in a court.

The Courts Service further submitted that wardship matters are not generally held in public and the affairs of all Wards of Court are confidential. It said that access to documents relating to wardship matters and held on file in that Office is a matter for the President of the High Court. The Courts Service said it has no control over records pertaining to the administration of the affairs of Wards of Court, as this is not a function of the Courts Service, but a function of the High Court. Accordingly, I find that the first exception to section 42(a)(i) as outlined above does not apply. I am also satisfied that the records sought do not relate to the general administration of the courts or the offices of the courts and that the second exception does not apply. I find, therefore, that section 42(a)(i) applies to the records at issue.

While I note the applicant's comments on redacting personal information from the records, the effect of my finding that section 42(a)(i) applies to the records that would contain the information sought by the applicant is that no right of access exists to those records, redacted or otherwise.

Information Provided Outside FOI

I noted above that information relating to the first part of the applicant's original request was provided to him by the Courts Service outside of FOI. The Courts Service said the data gathered in this manner was furnished to the applicant outside any requirements set out under FOI legislation, as there was no obligation under the Act to create a new record, nor was there an entitlement on the part of the applicant to access any specific tax records held on the individual wardship files, i.e. court records relating to the financial circumstances of deceased third parties.

Section 11(8) of the FOI Act provides that nothing in the FOI Act shall be construed as prohibiting or restricting an FOI body from publishing or giving access to a record (including an exempt record) otherwise than under the FOI Act where such publication or giving of access is not prohibited by law.

In his submissions to this Office, the applicant argued that in providing him with information, namely, the number of Ward of Court Estates to which section 189 [of the Taxes Consolidation Act 1997] applied who have passed away since 2016, the Courts Service had created a record to which the legislation should apply. I wish to explain that this information was provided to the applicant outside of the FOI Act. As outlined above, the Courts Service is not precluded from granting access to records outside FOI. However, this does not mean that the release of information pertaining to the applicant's request outside FOI entitles him to the information sought under the Act. As I have noted above, the effect of section 42(a)(i) is that the Act does not apply to the records and as such, no right of access exists, regardless of whether information relating to part of the applicant's request was released to him outside of FOI.

Accordingly, I find that the Courts Service was justified in its decision to refuse access to the records sought under section 42(a)(i) of the FOI Act. Given my decision on section 42(a)(i), there is no need for me to make a finding in relation to section 15(1)(a) in this case.

Decision

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 certain records relating to wardship matters under section 42(a)(i) on the ground that the Act does not apply to the records sought.

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