Case number: OIC-104934-W0J8T0
3 November 2021
On 25 August 2020, the Supreme Court requested the retired Chief Justice Susan Denham to carry out a review of Justice Seamus Woulfe’s attendance at an event that took place in August 2020 at Clifden Co. Galway and to answer a number of questions relating to that attendance. Justice Denham met with Justice Woulfe on two occasions in September 2020 and following these meeting she produced a report, along with a number of appendices, that was provided to the Supreme Court.
Prior to publication of the report, Justice Denham requested an indemnity in respect of her work on this matter in relation to any proceedings that may issue against her. The Supreme Court requested that the Judicial Council (the Council) consider the publication of the report and the provision of this indemnity.
The Council was established on 17 December 2019 pursuant to the Judicial Council Act 2019. Its remit is comprised of four main pillars; excellence in the performance of judicial function, high standards of conduct among judges, an independent judiciary and public confidence in the judiciary and in the administration of justice. Section 10 of the 2019 Act provides for the creation of a Board of the Council and section 12 provides details of the composition of the membership of that Board.
The Board of the Council met on a number of occasions in September and October 2020 to consider the matters of the indemnity and the publication of the report and the associated appendices. On 1 October 2020, the Board announced that it had decided to provide the requested indemnity to Chief Justice Denham. In addition, the Board decided to publish the report she had prepared along with six of the associated appendices. One of the published appendices, Appendix D, was the transcript of the first meeting between Justice Denham and Justice Woulfe that took place on 8 September 2020. In publishing that transcript it was indicated that redactions had been made to pages 82 and 110 ‘for legal reasons’.
However, the Council decided not to publish Appendix F which was the transcript of the second meeting between Justice Denham and Justice Woulfe that took place on 25 September 2020. In the statement released at the time it was stated that this appendix was not published at it related to legal argument and submissions on a draft report.
In a request dated 20 November 2020, the applicant submitted a request to the Council wherein he sought access to (a) a copy of the transcript of the second meeting and (b) copies of the minutes of all Council board meetings to-date, excluding the two previously released to him.
On 21 December 2020, the Council refused the first part of the applicant’s request on the basis that it did not hold the record concerned within the meaning of section 11(1) of the FOI Act. Notwithstanding that position, the Council also made reference to the provisions of sections 35(1)(b) of the FOI Act and said that to publish the transcript would be to breach a duty of confidence provided by law.
With regard to the second part of the request the Council part-granted the request. It refused access to parts of the relevant records under section 29(1), relating to deliberative processes, and section 30(1)(c) relating to negotiations undertaken by FOI bodies.
On 8 February 2021, the applicant sought an internal review of that decision, following which the Council affirmed its original decision. With regard to the first part of the applicant’s request, the internal reviewer also stated that the provisions of section 35(1)(a) were of relevance in the case. On 10 March 2021, the applicant sought a review by this Office of the Council’s decision.
In the course of his application to this Office the applicant indicated that it was his understanding that Justice Woulfe had consented to the release of the record at issue in this case although ultimately the Council had decided not to release the record. In support of this position the applicant supplied a letter dated 1 October 2020 from Justice Woulfe to the Interim Secretary to the Council wherein he indicated that he was happy for the Council to publish the full report, including all appendices.
In the course of the review by this Office, the Investigator in this case contacted Justice Woulfe to establish if he had any objection to release of the record. In response, he said that the former Chief Justice had indicated to him in a letter dated 28 August 2020 that the meeting with her would be held in private and that a stenographer would be present to ensure an accurate record. He indicated that it was on this basis that he had spoken with the former Chief Justice on 8 September 2020. He further indicated that he believed that this discussion would remain private, other than the possibility that in sending her final report to the Chief Justice that she might attach the transcripts of the meeting. With regard to the second meeting on 25 September 2020 Justice Woulfe indicated that it was his understanding that this meeting was also to be a private meeting and he believed that this understanding was shared with the former Chief Justice. Finally, he indicated that the private nature of these meetings was reflected in the designation of ‘Strictly Private and Confidential’ which was attached to both transcripts. In the circumstances, he indicated that he objected to the release of the record at issue in this case.
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 submissions made by the applicant in his application for review, the submissions made by the Council in support of its decision and the submissions of Justice Woulfe. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
In the course of the review by this Office, the Investigator sought confirmation from the applicant with regard to the exact scope of the review and in response the applicant indicated that the review should be confined to decisions taken in relation to part (a) of his request.
Accordingly, the scope of this review is concerned solely whether the Council was justified in refusing to grant access to the transcript of the second meeting between Justice Denham and Justice Woulfe on the ground that it does not hold the record concerned for the purposes of the FOI Act, or if it does, on the ground that the record is exempt from release pursuant to section 35 of the Act.
Does the Council hold the record?
Given the Council’s decision on the request, the first question I must consider is whether the Council holds the record at issue for the purposes of the FOI Act. Section 11(1) of the Act provides for a right of access to any record held by an FOI body. While the Act does not define “held”, it is well settled that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act.
The Drogheda Review Case
The Supreme Court considered the meaning of “held” for the purposes of the Act in Minister for Health v Information Commissioner  IESC 40 (commonly known as the Drogheda Review case). In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, former High Court judge Justice T.C. Smyth, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda.
Following the completion of his work, the reviewer, who had set the terms upon which he obtained the relevant information, sealed the transcript with other records and deposited them with the Department of Health for safekeeping. The reviewer stipulated that the boxes of records were not to be disclosed or opened in any circumstances except by court order for discovery, of which he wished to be notified. The issue before the Court was whether the records were held by the Department of Health for the purposes of the FOI Act.
In her judgment in the case, Finlay Geoghegan J. accepted that the equivalent provision of the Freedom of Information Act, 1997 (the Act of 1997) (section 6(1), which provides for the right of access to records held by public bodies), gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record “held” by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be answered are distinct.
On the meaning of held, Finlay Geoghegan J. found that for a record to be held within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.
Section 11(1) of the Act of 2014 is the equivalent of section 6(1) of the Act of 1997. As such, having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that for the record sought in this case to be deemed to be held by the Council, the Council must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.
The Council’s Submission
In its very comprehensive submissions to my Office, the Council argued that the position of the former Chief Justice in the current case is analogous to the position of Justice Smyth in that case. It argued that similar to the Drogheda Review case, the investigation conducted by the former Chief Justice was non-statutory and was carried out independently of the body which sought the review, in this case the Supreme Court.
The Council also emphasised the fact that in the current case, the review was not conducted at the request of the Council and as such, this weighs more strongly in favour of the conclusion that the relevant record is not held by the Council. In addition, the Council argued that “the genesis of the Record had nothing to do with the Judicial Council’, and that it had no involvement in the appointment of the reviewer. It further argued that as the record was created in the course of a review undertaken by the former Chief Justice as the request of the Supreme Court, it is the Supreme Court that initiated, facilitated, and assisted the creation of the record. The Council argued that its sole role in the process arose only after the review process had been initiated by the Supreme Court. In particular, it argued that in commissioning the report, the Chief Justice was not exercising any role as a member of the Council but was instead acting within his role as head of the Supreme Court.
The Council emphasised that the Supreme Court is not a public body subject to FOI nor are sitting or retired members of the Court. Referring to paragraph 17 of the judgment in the Drogheda Review case, the Council argued that the review in the current case was not commissioned by the Council (or its Interim Secretary) or the Chairperson of the Board of the Council. By way of background it is noted that by virtue of section 12(2)(a) of the 2019 Act, the Chief Justice is the ex officio Chairperson of the Board of the Council. With this in mind, the Council argued that it is important to emphasise that the former Chief Justice was not providing a service for or on behalf of the Council and once the review was complete, she submitted her report and appendices to the Supreme Court and not to the Council.
The Council further argued that the record at issue in this case was provided to it for an extremely limited purpose; i.e. to decide on publication. It argued that this cannot be said to have been furnished for the purpose of its ‘business or functions’ as set out in the test outlined by Finlay Geoghegan J. in the Drogheda Review case. In addition, the Council argued that modern work practices, and in particular the novel work practices adopted during the COVID-19 pandemic, mean that there is no current equivalent of Smyth J. sealing the boxes of records in the Drogheda Review case. However, the Council argued that the record at issue in this case is expressly indicated to be ‘Private and Confidential’ and ‘Off the record’ and that these designations are akin to a sealing of a box in terms of right of access.
Furthermore, the Council argued that had the record at issue been a hard copy file, the Council would have returned it to the Supreme Court as its function in relation to the record had concluded. It argued that while the record was in the electronic possession of the Council for a limited purpose, it was never in the control of the Council. The Council further highlighted the fact that the draft report, which is the subject matter of the discussions between the parties in the transcribed record, was never furnished to it.
In addition, the Council argued that the record was before the Council for an extremely limited period. It said copies of the appendices associated with the report by the former Chief Justice, including the record at issue in this case, were circulated to members of the Board during the afternoon of 1 October 2020. It said the Board met at lunchtime on 2 October 2020 to examine the publication of the appendices. It argued that having considered the record for less than 24 hours and for a limited purpose, i.e. publication, it cannot be considered that the Council exercised control over it. It further argued that if it is the case that it is determined that it did indeed have control of the record for that short period of time then such control has now lapsed.
Finally, the Council argued that it is necessary for this Office to interpret the reference to ‘held’ in a constitutional manner. It argued that the record at issue is a transcript relating to submissions on a draft report ‘commissioned by the Supreme Court, into actions of a Supreme Court justice, which draft report has not been made public’ [Council’s emphasis]. It argued that if it were to be determined that the Council held this record for the purposes of the FOI Act, in circumstances where the Board of the Council had decided not to disclose it, it would undermine judicial independence in a highly sensitive matter.
The Council proceeded to cite extensive case law in in relation to the constitutionally protected principle of judicial independence and in support of its argument that a finding that the record is held by it for the purposes of the FOI Act would undermine judicial independence. While I do not propose to repeat that extensive case law here, I can confirm that I have had regard to the totality of the Council’s submissions for the purposes of my review.
My Analysis and Conclusions
As I have outlined above, the test outlined by Finlay Geoghegan J in the Drogheda Review case for determining when a record can be deemed to be held by a public body for the purposes of the Act comprises two elements;
• the body must be in lawful possession of the record in connection with, or for the purposes of, its business or functions, and
• it must be entitled to access the information in the record.
It is important to note that both elements of the test must be met. Turning to the first element, I note at the outset that the Council accepts it was in lawful possession of the record at issue for the purposes of its functions, notwithstanding its arguments concerning the limited nature of those functions. As the Council itself described in its submissions, the Supreme Court sought that the Council consider both Justice Denham’s request for indemnity in respect of her work on the review and the question of publication of the report.
In the course of its submission to my Office, the Council made specific reference to
a statement published on its website on 1 October 2020, in which it stated the following:
The key functions of the Judicial Council include promoting and maintaining public confidence in the judiciary and the administration of justice. In light of the exceptional circumstances of the particular situation considered in the Review, and given public concern, the Board of the Judicial Council decided to give an indemnity to Ms Justice Denham in respect of her work in carrying out the Review in relation to her legal expenses and any litigation which may ensue.
While such an indemnity is a standard feature of non-statutory reviews, this also made it possible for this process to be concluded and to enable the Board to consider publication of the Report. The Board considers that publication is consistent with its statutory functions and conversely not to publish would have had an adverse impact on these same functions. Therefore the Board of the Judicial Council has decided to publish the Report. The Board has not yet had an opportunity to fully consider all of the Appendices to the Report. In order to facilitate publication in early course, those which are specifically referred to in the Report are included at this juncture and further Appendices will be reviewed with a view to deciding on publication. [my emphasis]
The record at issue is an appendix to the final report that the Council considered for publication. As such, I fail to see how the Council can reasonably argue that it was not in possession of the record in connection with, or for the purposes of, its business or functions. The fact that the functions may have been limited (i.e. to decide on publication), or that its function in respect of the record has since concluded does not, in my view, mean that it is not in lawful possession of the record in connection with, or for the purposes of, its business or functions. I am satisfied that the first element of the test outlined by Finlay Geoghegan J is satisfied.
With regard to the second element of the test, I am also satisfied that the Council was entitled to access the information in the record and, indeed, it did so. As the Council indicated in its statement, cited above, it intended to review the appendices to the report with a view to deciding on publication. The Council was clearly of the view that it was entitled to access the information in the record. In the circumstances, I find that both elements to the test outlined by Finlay Geoghegan J have been met and that the Council holds the record at issue for the purposes of the FOI Act.
I should add, for the sake of completeness, that despite the Council’s assertions to the contrary, I am satisfied that this case is entirely distinguishable from the Drogheda Review case. In that case, the Supreme Court accepted that the reviewer had properly imposed appropriate restrictions on access to the records and that the Department held the records at issue for safe-keeping purposes only. No such issues arise in this case. The Council’s arguments that the review conducted by Justice Denham was similar to the review carried out by Justice Smyth, that both reviewers carried out their work independently of the body that sought the review, and that the Council was not the body that sought the review, are not relevant, in my view, to the question of whether the Council holds the record for the purposes of the FOI Act.
I should also add that I do not consider it necessary to make any substantive comments on the extensive arguments made by the Council in its submission in relation to the constitutionally protected principle of judicial independence. Nevertheless, I would say that my finding that the record is held by the Council for the purposes of the FOI Act do not, in my view, impinge on this principle. In holding this view, I note that section 94 of the Judicial Council Act 2019 explicitly provides, with certain exceptions, for the applicability of the FOI Act to records held by the Council. While the provision is not of direct relevance to the case at hand, I consider it relevant that the Oireachtas clearly foresaw circumstances whereby records duly determined to be held by the Council would be subject to the FOI Act.
Section 35(1) provides for the mandatory refusal of a request where;
a) the record concerned contains information given to an FOI body in confidence, and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
b) disclosure of the information concerned would constitute a breach of a duty of confidence provide for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
As section 35(1) does not apply if the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. The record at issue in this case was prepared by the former Chief Justice Denham at the request of the Supreme Court, a body which is not subject to the FOI Act. I am therefore satisfied that section 35(2) does not apply in this case and I can proceed to consider the applicability of section 35(1). As section 35(1)(b) is, in my view, more relevant in this case, I will proceed to consider the applicability of that provision first.
For section 35(1)(b) to apply, disclosure of the record must constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. A duty of confidence provided for "otherwise by law" is generally accepted to include a duty of confidence arising in equity. In considering whether or not an equitable duty of confidence exists, this Office has regard to the three elements of what are generally known as the Coco test (Coco v A.N. Clark (Engineers) Ltd  R.P.C. 41):
"First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
The Council argued that a duty of confidence is owed to both to Justice Woulfe and the former Chief Justice as well as their respective legal advisers who attended the meeting. The Council further argued that a duty of confidence is also owed to the Supreme Court, both individually and collectively.
The Council argued that all three elements of the Coco test referred to above have been met. It argued that the information has the ‘necessary quality of confidence’ and that an obligation of confidence arose from the circumstances in which it was imparted. More particularly, the Council argued that the record at issue was confidential to the former Chief Justice and the parties attending the meeting on 25 September 2020. It specifically argued that this meeting was akin to a workplace regulatory hearing, held in private. The Council argued that the record is headed ‘Private and Confidential’ and ‘Off the Record’ and therefore it was clear that release would constitute a breach of confidence. In addition, the Council argued that the decision not to publish the transcript of the second meeting demonstrates and reinforces its confidential nature. The Council contrasted this with the fact that the transcript of the meeting of 8 September 2020, which was published with some small redactions, was designated ‘Private and Confidential’ but not ‘Off the Record’.
The Council further argued that the record relates entirely to submissions on the confidential draft report with which it was never furnished and more specifically cites extracts from the draft report and its contents. The Council therefore argued that release of a transcript of a meeting which discussed the confidential draft report would constitute a breach of a duty of confidence to the former Chief Justice, the parties making submissions on the draft report and the Supreme Court.
The Council also argued that the ability of a person who is the subject of a review to be made aware of and to respond to potential criticism in a draft report in an intrinsic feature of fair procedures and natural justice. It argued that in order to facilitate such an individual in fully and robustly articulating their position, this can only occur in a situation where there is an expectation of confidentiality on all sides. The Council further argued that such an expectation of confidentiality would be rendered meaningless if the transcript of submissions on any such draft report were to be made publically available.
The Council also argued that the obligation of confidence is supported by the wider principle of judicial independence and by the fact that it relates to an examination of judicial conduct which was initiated by the Supreme Court. The Council also referred to section 42(a) of the FOI Act which provides that the FOI Act does not apply to records held by the Courts and has argued that this reinforced the quality of confidence attaching to the record.
In this case, I accept that the information in the record at issue was provided for a specific limited purpose, namely to discuss the draft report that had been prepared by the Chief Justice, and that it was not intended for publication to the world at large. I am satisfied that the information concerns private or secret matters and has the necessary quality of confidence about it.
In considering whether information was imparted in circumstances importing an obligation of confidence, relevant matters to consider may include, for example, whether there were any assurances of confidentiality, and the expectations of the parties and the reasonableness of any such expectations. Having considered the matter, I accept that the meeting which took place on 25 September 2020, the transcript of which is at issue in this case, was essentially an opportunity for Justice Woulfe to make comments on a draft report which preceded the report which was ultimately submitted by Justice Denham and published. I accept that, in this instance, Justice Woulfe and his legal adviser furnished their comments to Justice Denham in confidence and in circumstances where they reasonably understood that the confidentiality of such information would be maintained. There are also references in the record itself which support the position that there was a mutual expectation of confidence in the circumstances of this case. I am therefore satisfied that both that there was an expectation that the information would be treated in confidence and I am satisfied that this expectation was, in the circumstances, reasonable.
The third requirement of the Coco test is that disclosure of the information would result in an unauthorised use to the detriment of the party who communicated it or where it is wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence. In a previous decision of this Office (Case 090077 Mr. X and the Department of Tourism Sport and Recreation) the Commissioner stated that he understood that "detriment" could arise simply where the relevant information is disclosed (which, under FOI, is equivalent to publication of the material concerned to the world at large) without the consent of the party to whom it relates. In the circumstances of this case where Justice Woulfe has indicated that he does not consent to the release of the record at issue I accept that the third requirement of establishing a breach of an equitable duty of confidence is met. I am therefore satisfied that an equitable duty of confidence existed and that section 35(1)(b) applies to the record at issue in this case.
In reaching this decision I have considered the argument raised by the applicant in relation to the correspondence from Justice Woulfe which indicated that at a certain point in time he consented to the release of the record at issue, it being one of the appendices appended to Justice Denham’s final report. However, as set out above, when contacted by this Office Justice Woulfe indicated that he objected to the release of the transcript.
Having considered the matter, and in the circumstances of the case, I do not consider that the possibility that Justice Woulfe may have at some point in time agreed to the publication of the meeting transcript to automatically negate the expectation of confidence which had reasonably been assumed to exist when the information was imparted. As I have found that all the requirements of an equitable duty of confidence have been met in this case and that section 35(1)(b) applies to the record, I am satisfied that the correspondence of 1 October 2020 does not alter this finding.
Section 35(1)(b) is not subject to the general public interest balancing test under section 35(3), but as noted in previous cases, a duty of confidence may still be subject to public interest considerations. It has been acknowledged in previous cases (e.g., Case 140108 (Ms. X & The Department of the Environment, Community and Local Government), available at www.oic.ie), that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. Having considered the matter, I do not consider that there are any public interest considerations which would alter my findings and I am satisfied that section 35(1)(b) applies to the record at issue.
I find, therefore, that the Council was justified in refusing access to this record under section 35(1)(b). As I have found section 35(1)(b) to apply to the record at issue I do not consider it necessary to consider the applicability of section 35(1)(a).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access, under section 35(1)(b) of the FOI Act, to the transcript of an interview which was carried out in the course of the investigation by former Chief Justice Susan Denham into the attendance by Justice Seamus Woulfe at an event in Clifden, Co. Galway.
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.