In the matter of the Freedom of Information Act 1997 and in the matter of an appeal pursuant to section 42 (1) of that act: The Minister for Justice, Equality and Law Reform (appellant) v The Information Commissioner (respondent).

In the matter of the Freedom of Information Act 1997 and in the matter of an application by the Courts Service pursuant to section 42 of the Freedom of Information Act 1997: The Courts Service (appellant) v The Information Commissioner (respondent); Patrick Rogers, The Minister for Justice Equality and Law Reform and (by order) The Director of Public Prosecutions (notice parties).

Freedom of Information - Request for access to shorthand note, transcript, witness statements and other documents relating to a criminal prosecution - Access to shorthand note and transcript regulated by rules of court - Witness statements copied and compiled in book of evidence - Whether documents relating to "proceedings" - Whether documents created by a court - Whether documents created by Director of Public Prosecutions or his office - Whether disclosure of documents to public prohibited - Freedom of Information Act 1997, section 46.

The High Court (Mr Justice Finnegan); judgment delivered 14 March 2001.

Pursuant to section 46(1) of the Freedom of Information Act 1997, that Act does not apply to records held by a court and relating to, or to proceedings in, a court subject to certain exceptions, including, inter alia, a record which relates to proceedings in a court held in public but which was not created by the court and whose disclosure to the general public was not prohibited by the court. Section 46(1) provides that the Act shall not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions (other than a record concerning the general administration of either of those Offices).

The word "proceedings" is not used in the sense of an action but rather it means any step in an action. Accordingly, in order to fall within the exception, a record must relate to a step in an action which is held in public. The reference to a prohibition on disclosure of the record to the general public relates to general prohibition on disclosure, express or implied in the Rules of the Superior Courts, which is subject to judicial discretion or dispensation, as well as a prohibition arising out of the power of the courts to regulate their own procedures. Having regard to the relationship between the official stenographer and the court, as disclosed by Order 86 of the Rules of the Superior Courts 1986, the shorthand note and transcript which might be produced from the same is created by the court. The photocopying of documents created elsewhere and their compilation is the creation of a record for the purposes of the 1997 Act.

Mr Justice Finnegan so held in ruling that the first notice party was not entitled to access to the shorthand note and transcript in the criminal prosecution of his wife, on the basis that these were documents created by the court and on the basis that disclosure of the contents of these documents was regulated by the rules of court. Access to the book of evidence was likewise refused on the basis that the compilation of the book of evidence was the creation of a record for the purposes of the 1997 Act by the Director of Public Prosecutions or the Office of the Director of Public Prosecutions. The original statements and other documents which were the source of documents compiled into the book of evidence were documents held by the Director of Public Prosecutions within the meaning of section 46 (1) of the 1997 Act and accordingly, the first notice party was not entitled to access to the witness statements relating to the prosecution. Mr Justice Finnegan granted access to other documents held by the court on the basis that there was insufficient information before the court to rebut the presumption in section 34(12)(b) of the 1997 Act that on review by the Information Commissioner a decision to refuse to grant a request under section 7 was not justified unless the head concerned shows to the satisfaction of the commissioner that the decision was justified.

Maurice Collins BL for the Minister for Justice, Equality and Law Reform; John McMenamin SC and Conleth Bradley BL for the Courts Service; Brian Murray BL for the Information Commissioner; the first notice party (to the second appeal) appeared in person; Margaret O'Driscoll BL for the Director of Public Prosecutions

Mr Justice Finnegan said that Mr Patrick Rogers, the first notice party to the second appeal, had applied to the Minister for Justice Equality and Law Reform pursuant to section 7 of the Freedom of Information Act 1997, for access to records being the complete transcript and associated materials relating to proceedings entitled "The People (DPP) v Rose Rogers" heard in the Circuit Criminal Court at Dundalk on 10 June 1998. The request was refused. The notice party sought an internal review of the decision to refuse his request pursuant to section 14 of the 1997 Act and on this review the refusal had been upheld. On 22 December 1998, the notice party applied to the Information Commissioner for a review of this decision, and on 13 September 2000 the Information Commissioner granted the notice party access to a typed transcript of the hearing, certain witness statements and two claims in respect of payment of fees, and a statement of Rose Rogers subject to the deletion of parts thereof.

These proceedings were appeals against the decision of the Information Commissioner. The involvement of the Courts Service arose in that, as a result of the Courts Services Act 1998, the Courts Service and not the Minister had custody of the relevant documents.

Mr Justice Finnegan said that the appeal turned on the correct construction of the Freedom of Information Act 1997, section 46 (1), and its application as so construed to the documents to which access had been granted by the Information Commissioner's decision under appeal. Section 46 (1) provides: "This Act does not apply to ... (a) a record held by (i) the courts ... and relating to, or to proceedings in, a court ... other than - (I) A record that relates to proceedings a court ... held in public but was not created by the court ... and whose disclosure to the general public is not prohibited by the court ..., or (II) A record relating to the general administration of the courts or the offices of the courts .... (b) A record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions (other than a record concerning the general administration of either of those offices)."

Mr Justice Finnegan said that in breaking down the exception into its constituent parts, he had taken the view that the phrase "held in public" referred to the word "proceedings" and not to the word "court", because he was satisfied that the word "proceedings" was not used in the sense of an action, but rather it meant any step in an action. For this step to come within the exception it must be a step taken in public. Not every proceeding, whether in a civil or criminal matter, the hearing of which is held in public, is itself a proceeding held in public.