Whether the Department was justified in refusing access to the names of judges appointed to the Special Criminal Courts, the dates on which they were appointed, and where applicable, the dates on which they were removed, the reason for removal and who they were replaced by, on the basis that the record is exempt from release under sections 32(1)(a), 32(1)(b), and 37(1) of the FOI Act

22 June 2022

Background

On 8 December 2021, the applicant wrote to the Department seeking access to the following:

1. -�The names of all persons appointed as a member of a Special Criminal Court, and their qualification for appointment, under s.39 (2) of the Offences Against the State Act, 1939 as amended, since 1st January 2018 to date.
2. The names of all persons removed as a member of a Special Criminal Court under s.39 (2) of the Offences Against the State Act, 1939 as amended, since 1st January 2018 to date, and the reason for their removal.
3. The names of all persons who resigned as a member of a Special Criminal Court under s.39 (2) of the Offences Against the State Act, 1939 as amended, since 1st January 2018 to date and the reasons for their resignation.-�

In a decision dated 12 January 2022, the Department said it had decided to part-grant the request. It referred to Section 39 of the Offences Against the State Act 1939 which details the qualification requirements of members of the Special Criminal Courts. It provided details of the number of current serving members of the Special Criminal Courts and the Courts from which they were appointed, the number of judges appointed to the Special Criminal Courts each year from 2018 to 2021, information about the general reasons for the replacement of judges, and a statement that none of the judges appointed resigned as a member of the Special Criminal Courts during the time period. It said some of the information sought was subject to refusal under section 37(1) of the Act. Whilst not citing any other specific exemption provisions, it also said the names of the judges could not be released for reasons of their personal safety and also having regard to its obligations under the Data Protection Acts.

The applicant sought an internal review of that decision on 15 January 2022. On 24 February 2022, the Department affirmed its original decision. On 4 March 2022, the applicant sought a review by this Office of the Department's decision.

During the course of the review, the Department argued that the names of the members of the Special Criminal Courts were also exempt from release under sections 32(1)(a)(iv) and 32(1)(b) of the Act. The applicant was provided with an opportunity to make further submissions in response but none were received. 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 applicant's comments in his application for review and to the submissions made by the Department in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of the review, the Department provided this Office with a record comprising a table which includes the names of judges appointed to the Special Criminal Courts, the dates on which they were appointed, and where applicable, the dates on which they were removed, the reason for removal and who they were replaced by.

Accordingly, this review is concerned solely with whether the Department was justified in its decision to withhold, under sections 32(1)(a)(iv), 32(1)(b) and 37(1) of the Act, the record in question.

Preliminary Matter

It is disappointing to note the Department citing the Data Protection Acts as a ground for refusing a request made under the FOI Act, in circumstances where this Office has clarified its understanding of the interplay between the two regimes in a number of previous decisions. I also understand that the Central Policy Unit of the Department of Public Expenditure and Reform has previously clarified the position in its engagements with FOI bodies through the relevant FOI networks. Nevertheless, for the benefit of the Department, I will repeat our position on the matter once again here.

Article 86 of the General Data Protection Regulation (GDPR) provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation.

Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86 of the GDPR, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request.

Data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 of the FOI Act to the records at issue.

I expect that the Department will take note of my comments on this matter and bring them to the attention of all of its decision makers.                 

Analysis and Findings

Section 32(1)(a)(iv)

Section 32(1)(a)(iv) provides that an FOI body may refuse to grant a request if it considers that access to the record sought could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

It is well settled that mere assertions by an FOI body as to harms that might result from disclosure of a record are not sufficient for the Commissioner to find that a particular exemption applies. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain why releasing the particular record could reasonably be expected to cause the harm which it has identified. It should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). In interpreting the words -�could reasonably be expected to-�, the Commissioner's view is that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.

In its submissions to this Office, the Department argued that the disclosure of the names of judges who sit on the Special Criminal Courts could reasonably be expected to prejudice or impair the fairness of proceedings in the Special Criminal Courts by increasing the risk of intimidation of judges who sit on the Courts. It noted that the Special Criminal Courts deal specifically in cases with an inherently high risk of jury intimidation, and it argued that releasing the names of judges, particularly in a list, would increase the risk that those judges would be intimidated. It argued that this would, in turn, impair the functioning of the Special Criminal Courts themselves. 

The Department's argument is based on its argument that the names of judges who sit on the Special Criminal Courts in not routinely published or made widely available, and that it is particularly not provided as a list. It stated that appointments to the Special Criminal Courts are made by Government decision, that such information is not released into the public domain, and no announcement (press release or statement) is made with regard to appointments.

However, in its response to questions posed by this Office, the Department acknowledged that -�there are no restrictions for the media or the public to attend court sittings at the Special Criminal Courts-�. It also acknowledged that there are no restrictions in respect of reporting of the Court proceedings, although it said -�the presiding judges may restrict attendance for the media and the public and may also restrict reporting on cases due to exceptional situations, e.g. to protect the witness, etc.-�.

This Office also brought to the Department's attention the fact that S.I. No. 183/2016 (Offences Against the State Acts 1939 to 1998 Special Criminal Court No. 2 Rules 2016), which sets out the rules of the second Special Criminal Court, was signed by the then members of the Court. In response, the Department said that the names of Judges sitting in the Special Criminal Courts is not routinely published but may be published specifically in the course of performing a function in which it is necessary. It said the Judges of the Special Criminal Courts make their own Court Rules and those Rules have to be signed by the members according to the relevant legislation. It argued, however, that this only shows that, at that particular point, those particular Judges were members of the Special Criminal Courts. It said it does not provide information as to when they were appointed to the

Special Criminal Courts.

It is apparent that certain information concerning the identities of at least some judges who sat on the Special Criminal Courts for the period covered by the FOI request is publicly available. Moreover, the fact that the members of the Court signed the relevant publicly available Statutory Instrument undermines, in my view, the Department's argument that the names of the judges is not widely available. Moreover, as the applicant pointed out in his correspondence with both this Office and the Department, media reports of proceedings of the Special Criminal Courts regularly identify the judge concerned.

I would add that I find it difficult to accept the Department's argument that the identification of the judges could result in increased intimidation in circumstances where the parties involved in any particular proceedings would be well aware of the relevant judge's identity.

In conclusion, given what I consider to be the significant level of widely available information relating to the identities of judges sitting on the Special Criminal Courts, I fail to see how the release of those names in the record at issue could possibly give rise to the harms identified by the Department. Furthermore, I do not see how information relating to the dates of appointment or removal of judges could cause such prejudice or impairment, nor has the Department explained how such harm might arise from the release of that information. I find that section 32(1)(a)(iv) does not apply to the record at issue.

Section 32(1)(b)

Section 32(1)(b) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person. This exemption is not commonly used. This Office takes the view that section 32(1)(b) should not be applied without careful consideration having been given as to whether the expectation is a reasonable one in all the circumstances. It is not necessary, or indeed possible, to establish that such harm will occur, but the FOI body should show that there is a reasonable expectation of such harm arising. In order for the exemption to be upheld, it should be possible to clearly link the expectation of harm arising to the content and context of the records.

The Department's argument in support of refusal under section 32(1)(b) is precisely the same as that offered in respect of section 32(1)(a)(iv), namely increased intimidation. For the same reasons as I have found section 32(1)(a)(iv) not to apply to the record at issue, I find that section 32(1)(b) does not apply.

Section 37(1)

Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. Under section 37(1), such personal information cannot be released unless one or more of the other relevant provisions of section 37 apply.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including at paragraph (iii) information relating to an individual's employment or employment history.

Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, namely;

-�in a case where the individual holds or held-�

(A)office as a director of,
(B)a position as a member of the staff of, or
(C)any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid-�.

This Office asked the Department to comment on the applicability of the exclusion to the information sought. In response, the Department said that the judges who sit on the

Special Criminal Courts receive remuneration from public funds with regard to

their position as judges in the Courts to which they were appointed and that they do not receive additional remuneration or allowances for their role as judges sitting on the Special Criminal Courts. It seems to me that the Department's response ignores the fact that the judges hold or held office remunerated from public funds in the various Courts.

The disclosure of the names of the judges contained in the record at issue would involve the disclosure of the fact that at some stage during the period covered by the request, they sat on the Special Criminal Courts. I am satisfied that the exclusion in Paragraph I serves to exclude that information from the definition of personal information. I find, therefore, that section 37(1) cannot apply to refuse access to the names of the judges.

On the other hand, I am not satisfied that the exclusion in Paragraph I serves to exclude the other information in the record comprising the dates on which the various judges were appointed, and where applicable, the dates on which they were removed and the reason for removal. The exclusion at Paragraph I does not exclude all information relating to public servants. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

In my view, the details of when individual judges were appointed, when they were removed from office, and the reasons for same, does not comprise information relating to the office held or its functions or the terms upon and subject to which the individual holds or held that office or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid. Rather, it relates to the specific personal circumstances of the individual judges. In conclusion, therefore, I find that section 37(1) applies to that information.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. In particular, section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates.

In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (-�the Enet Case-�), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Moreover, the Court found that the exemption provision recognises that there is a public interest in ensuring the protection afforded by provision and that this may normally be served by the operation of the exemption itself. Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to note, having regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 (-�the Rotunda case-�) that a public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is also important to note at this stage that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put.

Bearing in mind the foregoing, I can identify no specific public interest in favour of releasing the information to which I have found section 37(1) to apply that would, on balance, outweigh the right to privacy of the individuals identified in the records. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the Department was justified in refusing access to information in the final five columns of the relevant record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department in this case.

I find that it was not justified in refusing access, under sections 32(1)(a)(iv), 32(1)(b), or 37(1) of the Act, to the information contained in columns 1 to 3 of the record at issue, comprising the names of judges who were appointed to and/or removed from the Special Criminal Courts and the specific Courts in which they hold or held office. I direct the release of that information.

I find that the Department was justified in redacting the information in the remaining columns under section 37(1) of the Act. 

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator