High Court Direction to release records welcomed

national | crime and justice | press release Friday December 11, 2020 11:55 by foie - Friends of the Irish Environment

Press Release - Friends of the Irish Environment 8th Dec 2020

Campaigners for opening of Court records claim initial victory
High Court Direction to release records welcomed

A new ‘High Court Practice Direction’ issued by the Court Service on 13 November 2020 has been claimed as an initial victory by campaigners seeking access to Court records after the judicial process is completed. [1]

The Direction issued recently by Mary Irvine, President of the High Court, allows any member of the public to seek access to the written submissions provided to the Court by parties in proceedings after 11 January 2021.

FRIENDS OF THE IRISH ENVIRONMENT
PRESS RELEASE
FOR IMMEDIATE RELEASE
TUESDAY 8 DECEMBER 2020

Campaigners for opening of Court records claim initial victory
High Court Direction to release records welcomed

A new ‘High Court Practice Direction’ issued by the Court Service on 13 November 2020 has been claimed as an initial victory by campaigners seeking access to Court records after the judicial process is completed. [1]

The Direction issued recently by Mary Irvine, President of the High Court, allows any member of the public to seek access to the written submissions provided to the Court by parties in proceedings after 11 January 2021.

A redacted version of the parties pleadings entitled “Written Submissions for Public Release” will be required to avoid contravening any restriction contained in any enactment or rule of law or order of a court, including data protection legislation. A copy of Written Submissions for Public Release in any given case must be provided to the Court on the day of the judgment and may be sought by a member of the public by sending a request to the Principal Registrar at the Central Office.

Friends of the Irish Environment, who began to seek closed court case records with a sample request to the High Court in July 2016, welcomed the move by the Courts Service which Justice Irvine stated was ‘In the interests of transparency and consistent with the principle of open justice.’

FIE has been campaigning for the release of access to Court records after the judicial process is completed, arguing that the records no longer attract judicial protection as their care is solely an administrative function.

The Irish Information Commissioner supported the Court Service’s refusal and FIE’s subsequent Judicial Review was referred by the High Court to the European Court of Justice for advice. References to the European Court of Justice seek clarification of cases before national courts where a question of EU law arises. Of the Member States, only Poland took up the opportunity to comment, intervening on Ireland's side. The European Commission, in contrast, intervened in support of FIE's position.

Last week a preliminary advice from the Court by way of an Advocate General’s Opinion concluded the institution holding the court records, which under national law was the Courts Service of Ireland, did so in a ‘judicial capacity’ on behalf of the Courts. [2] When acting in such a capacity, that institution was exempt from the requirements to release information under Access to Information Directive 2003/4/EC.

While advising Ireland that the Directive did not cover the information sought and so the case should fail, the Advocate General added in a ‘Postscript’ that ‘I remain of the opinion that, in general, there is no reason to refuse access to a file to any interested individual in closed cases, unless there are clear and imperative reasons against such disclosure in an individual case. Such openness of the judiciary strengthens the overall legitimacy of the courts and improves the quality of justice’.

A final decision by the Irish High Court is expected early next year.

A FIE spokesman said that while it would not be appropriate to comment on the full case before the High Court’s decision, ‘after four years the new Practice Direction at least establishes that from now on the public and practitioners will be able to examine closed cases in detail, saving time and costs and representing a welcome move towards fully open and transparent justice.’

FIE is represented by O’Connell Clarke, Solicitors, Jerry Healy BL and John Kenny, BL

Verification: Tony Lowes, Friends of the Irish Environment: 353 (0)87 2176316

DOCUMENTS
[1] High Court Practice Direction of 13 November 2020
https://www.courts.ie/content/access-written-submissions

[2] OPINION OF ADVOCATE GENERAL BOBEK delivered on 3 December 2020 IN Case C 470/19
Friends of the Irish Environment Ltd v Commissioner for Environmental Information, joined party: The Courts Service of Ireland
http://curia.europa.eu/juris/document/document.jsf?text=&docid=234966&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=16106960

This Press Release
https://www.friendsoftheirishenvironment.org/press-releases/17909-campaigners-for-opening-of-court-records-claim-initial-victory