Request for statement of reasons why a Court case to which the requester was a party came to be listed for hearing on a particular date - adequacy of statement provided - section 18

Case Summary

Facts

The requester applied to the Department of Justice, Equality and Law Reform for a statement of reasons as to why a particular Court case to which he was a party was listed for hearing on a particular date. The Department indicated that it was not possible to ascertain any particular issues which may have been taken into account when listing the case as the then County Registrar was no longer employed by the Courts. The requester applied for a review of the Department's decision.

Decision

During the course of the review, responsibility for records relating to the Courts passed to the Courts Service. The Courts Service subsequently issued a revised statement of reasons. However, the requester was not satisfied with the revised statement and he requested that the former County Registrar be interviewed in order to obtain an adequate statement. The Commissioner did not consider it appropriate to interview the official concerned. He decided that speculation as to the precise thought processes of former officials should not generally be necessary for the purpose of enabling a public body to fulfil its obligations under section 18. He decided that where a public body has a particular practice which it follows in taking decisions in a particular set of circumstances and where that practice has been followed then, normally, there should be no further need to enquire into the thought processes of the decision maker. In this case, the Commissioner found that the revised statement of reasons issued by the Courts Service adequately identified the criteria relevant to the decision to list the requester's court case for hearing and that it explained clearly and adequately how each of the criteria affected the decision.

Date of Decision: 20.02.2001

Our Reference: 99424

20.02.2001

Mr X

Dear Mr X

I refer to your application under the Freedom of Information Act, 1997 for a review of the decision of the Department of Justice, Equality & Law Reform (the Department) relating to your request for reasons why case reference FAS V Mr X came to be listed for hearing on 2 December, 1998.

Background

I have now completed my review of the Department's decision. In carrying out that review I have had regard to your various submissions to my Office and to your correspondence with the Courts Service. I have also had regard to correspondence between my Office and the Courts Service.

I note that some time after the Department made its decision, the Courts Service was established and the Department indicated that responsibility for records relating to the Courts became a matter for the Courts Service. In the circumstances my Office decided to try to advance the review by taking the matter up with the Courts Service. In the course of the review, my Office indicated to the Courts Service that it believed that the original statement of reasons furnished by the Department was inadequate and it asked the Courts Service to consider the issue of a revised statement of reasons. This the Courts Service duly did on 4 October, 2000. I note that despite further exchanges of correspondence between you and the Courts Service you continue to believe that the revised statement of reasons furnished to you is inadequate. As the prospects of settling this review by agreement appear to be remote I have decided to conclude it by way of a binding decision.

Scope of Review

My review is concerned solely with the question of whether the revised statement of reasons dated 4 October, 2000 provided by the Courts Service on behalf of the Department is adequate for the purposes of section 18 of the FOI Act.

Findings

As you are aware, section 18 of the FOI Act provides that a person who is affected by an act of a public body and has a material interest in a matter affected by the act or to which it relates is entitled to a statement of reasons for the act and of any findings on any material issues of fact made for the purposes of the act. Where a requester applies for a review of a decision of a public body on the ground that s/he is not satisfied with the contents of the statement my role is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. is the statement given adequate. My remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought.

At this point it would be useful to set out what I consider should be the principal features of a statement of reasons having regard to section 18. In my view, a statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. The statement should be sufficiently clear to enable the requester to understand without undue difficulty why the public body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However, I do not consider that a statement should necessarily have to contain a detailed clarification of all issues identified by a requester as relevant to a particular act or decision.

As you may be aware, section 34(7) of the FOI Act provides that I may, at any time during the course of my review, endeavour to effect a settlement between the parties concerned. In a situation where I am of the view that a public body has not given an adequate statement of reasons in accordance with section 18, I consider it reasonable to advise the public body of my views and to determine if the body would be willing to issue a revised statement which addresses the inadequacies, as I see them, of the original statement.

In this case, Mr Smyth of my Office was of the view that the Department's initial statement was not satisfactory. He considered, and I agree, that it was not sufficient for the Department to say that the officer who filled the position of County Registrar at the time of your case is no longer employed in the Courts and that, as such, it is not possible to ascertain any particular issues which may have been taken into account when listing your case. It is clear that there had been correspondence between the parties and the Circuit Court Office about the question of a date and, in my view, a statement of reasons should, at the very least, indicate that such correspondence had been taken into account.

Following discussions between Mr Smyth and representatives of the Courts Service on the matter, the Courts Service expanded on the Department's initial statement in its letter of 4 October, 2000 to you. It indicated that, when listing cases in the Circuit Court, regard is had to (i) the Circuit Court Rules and relevant Circuit Court Practice Directions, (ii) the wishes of the parties in so far as they can be accommodated and (iii) the availability of dates. I will comment on each of these matters in turn.

Rules/Practice Directions

It is clear that much of what the Court Service says under this heading is by way of background. However, the salient point which emerges is that the Courts Service claims that the onus of ensuring that all parties are ready to proceed falls on the parties to the proceedings. The Circuit Court Office does not enquire into the matter, given the number of cases for which dates are sought on an ongoing basis. More to the point, this practice was followed by the relevant official in the Circuit Court Office when dealing with the listing of the case which is the subject matter of this review. I wish to make it very clear that I have no role, as Information Commissioner, in deciding whether this practice is justifiable. It is sufficient that I be satisfied as, indeed, I am that this is the approach that was, in fact, adopted by the official concerned.

Wishes of the Parties

The Courts Service indicates that, in this instance, particular regard was taken of your letter of 1 October, 1998 in which you stated that you hoped for a hearing date after 1 December, 1998 and that, while you mention the possibility of a date for hearing in the new year further on in this letter, it was not clear from the letter that you no longer wanted a date in early December.

The Availability of Dates

The Courts Service explains that dates are allocated on a first come first served basis and that, in this case, 2 December, 1998 was chosen as it was the first available date after 1 December, 1998.

In summary, what the Courts Service is saying is that the state of readiness of the parties was not a matter which was taken into account by it in listing your case for 2 December, 1998; that it understood that you were agreeable to proceed at any time after 1 December, 1998; that, specifically, your letter of 1 October, 1998 was taken (rightly or wrongly) as an indication that you were ready to so proceed; and that 2 December, 1998 was the first available date after 1 December, 1998.

Adequacy of Revised Statement

During the course of this review you raised a number of matters concerning the manner in which your case came to be listed for hearing on 2 December, 1998. For example, you say in your initial letter of 24 August, 1999 to my Office that "it appears that the case was listed for hearing despite my written representation as a result of a telephone conversation to a civil servant". You indicate in your submission of 10 September, 1999 that you believe that the case was improperly listed. You consider that a statement that the case was listed for hearing due to failure to follow fair procedure would be adequate and you seek a statement to this effect. Furthermore, you set out in your supplementary submission which was received on 20 September, 2000 your views as to how the case should have been listed. However, as I have indicated above, my remit does not extend to examining the appropriateness or otherwise of the manner in which the case came to be listed. My role extends only to examining whether an adequate statement of reasons has been provided. It is not a matter for me as Information Commissioner to examine whether any inference you may draw from such a statement, or from your correspondence with the Courts Service, is correct.

In this case, while the initial statement of reasons given by the Department identified three factors to which regard is generally had when listing cases, it did not explain in any detail how such matters affected the decision to list your particular case. I am satisfied that the letter of 4 October, 2000 adequately explains how the three factors identified affected the decision to list your case for hearing and that it is sufficient for the purposes of section 18 of the Act.

I note that, following receipt of the letter of 4 October, 2000, you entered into further correspondence with the Courts Service and you referred, among other things, to communications that took place between the Circuit Court office and William Fry, Solicitors, in connection with the court case. I also note that Ms O'Flanagan, in her letter of 14 December, 2000 to you, said that she could not say how the previous County Registrar fixed the date of 2 December, 1998. This statement appears to contradict her letter of 4 October, 2000 which, in my view, does explain how the County Registrar went about listing the case. I can only see Ms O'Flanagan's later letter as the expression of an unwillingness on her part to speculate as to the precise thought processes of the former County Registrar. However, in my view, no such speculation is or should be necessary for the purposes of enabling a public body to fulfil its obligations under section 18. Where a public body has a particular practice which it follows in taking decisions in a particular set of circumstances and where that practice has been followed then, normally, there should be no further need to enquire into the thought processes of the decision maker. Indeed, it is for precisely this reason that I consider that it was insufficient for the Department to claim that it was not possible to ascertain any particular issues which may have been taken into account when listing your case due to the fact that the then County Registrar is no longer employed in the Courts. In the circumstances, I do not interpret Ms O'Flanagan's letter of 14 December, 2000 as a retraction of the revised statement of reasons set out in her letter of 4 October, 2000.

In relation to the telephone communication which took place on 8 October, 2000 between William Fry, Solicitors, and the Circuit Court Office, I note that the official concerned, Ms Kirwan, has no recollection of what was discussed during the telephone conversation. The Courts Service has also provided a schedule of all records contained in the Court file in this case and I note that there is no record of the details of the telephone conversation. In the circumstances, I am satisfied that it would be unreasonable to expect a statement of reasons as to why your case came to be listed for hearing on 2 December, 1998 to indicate that regard was had to the telephone conversation in question as no evidence has been made available to me which supports this view.

Conduct of this Review

During the course of the review you expressed the view that I should interview the former County Registrar in order to determine how your case came to be listed. In your letter of 26 July, 2000 you say that if I am in doubt as to how to proceed it is open to me to refer the matter to the High Court. You also claim, in your letter of 31 January, 2001, that failure to bring the matter before the Court would be a serious derogation of duty and one that would undermine the respect and credibility of my Office. I do not accept this view. Section 37(6) of the FOI Act provides that the procedures for conducting a review shall be such as I consider appropriate in all the circumstances of the case. I was in no doubt as to how to proceed in this case. I did not consider it appropriate to interview the former County Registrar in this case for the following reasons.

Firstly, it seems to me that if the information currently held by a public body is insufficient to enable the reasons for a particular act to be determined then there is no guarantee that a former official will provide further enlightenment. This would be particularly so in this case, given the large number of cases which the County Registrar would have dealt with and given the passage of time since the case was listed. Secondly, the Courts Service has indicated that there are no records on file to indicate that anything other than the normal procedures for the listing of cases was followed in dealing with your case and I accept its evidence on this point.

In summary, the Courts Service has, in my view, adequately identified the criteria relevant to the decision to list your case for hearing and I find that it has explained clearly and adequately how each of the criteria affected the decision. I find, therefore, that an adequate statement of reasons has now been provided as required under section 18 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby annul the decision of the Department in this case. In accordance with section 34(2)(b)(ii) of the Act, I have decided that the revised statement of reasons dated 4 October 2000 meets the requirements of section 18 of the Act.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner