Turning to the documents to which the notice party had been granted access, Mr Justice Finnegan said that requirement for a record and transcript of criminal proceedings arose under section 33 of the Courts of Justice Act 1924, as substituted by section 7 of the Criminal Justice (Miscellaneous) Provisions Act 1997. Order 86 of the Rules of the Superior Courts 1986, dealt with the Court of Criminal Appeal, and rule 1 defines the "official stenographer" as the person appointed to attend the trial and, where necessary, to make a report. Rule 14 provides that the original shorthand note and a transcript of the whole of such note or such part thereof as might be required shall be furnished on request by the registrar by the official stenographer after certification of the transcript by the judge of the court of trial. A party interested in an appeal or application for leave to appeal may obtain a copy of the transcript or shorthand note from the registrar on payment of the proper charges. Order 123 deals with shorthand reporting in civil matters, and was not strictly relevant other than that Order 123 refers to a shorthand writer, as opposed to Order 86 which refers to the official stenographer. Order 123 provides for the manner in which the expense of the shorthand writer shall be dealt with as between the parties, but also provides that the judge shall have power to direct that copies of the transcript be furnished to him at the public expense or be furnished to any party applying therefor at the expense of that party.

Mr Justice Finnegan said that the relationship between the party applying for an order under Order 123 and the shorthand writer would appear to be a matter of contract between that party and the shorthand writer subject only to the power conferred upon the judge under Order 123 rule 4 to direct the preparation of a transcript at the public expense for himself or at the expense of a party for delivery to that party.

On the other hand, the official stenographer was appointed by the court through the agency of the Courts Service. The sole relationship that the stenographer had was with the court. Mr Justice Finnegan said that it seemed clear that at all times the official stenographer had a relationship exclusively with the court and transcripts were only provided by the registrar to a party interested in an appeal or application for leave to appeal. In this sense, Mr Rogers was not a party and indeed there was no appeal in being. On both these counts, he was not entitled to a transcript. Mr Justice Finnegan said that, having regard to the relationship which existed between the official stenographer and the court as it appeared from the Rules of the Superior Courts 1986, he was satisfied that the shorthand note and the transcript which might be produced from the same was created by the court and therefore fell outside the exception in section 46(1)(a)(I).

Mr Justice Finnegan said that he was further satisfied that the shorthand note and transcript fell outside the exception to section 46(1)(a)(I) in that it was a record whose disclosure to the general public was prohibited by the court. Order 86, rules 14 and 17, regulated who was entitled to obtain a transcript from the registrar and the conditions as to payment which should apply. The rules prohibited the issue of a transcript to any other person save and except that an order might be made in favour of any other person pursuant to Order 31, rule 29.

The Information Commissioner was therefore incorrect insofar as he held that section 46(1)(a)(I) was concerned with a specific prohibition imposed by the court which had dealt with or was dealing with the matter to which the record relate. The provision equally applied to the situation here where there was a general prohibition express or implied in the Rules of the Superior Courts with specified exceptions and a discretion in the court where appropriate to relieve from that prohibition. Mr Rogers was therefore not entitled to access to the transcripts. Mr Justice Finnegan said that while it was not relevant to these appeals, he would hold that, since the courts were entitled to regulate the conduct of the court business, a practice not having its origin in the Rules of the Superior Courts would likewise amount to a prohibition, eg, the practice of confining access to Central Office files to parties and their representatives.

Turning to the witness statements, Mr Justice Finnegan said that these were all contained in the book of evidence, with the possible exception of a statement of Rose Rogers. If the statement was not in fact included in the book of evidence but was nonetheless held by the court then it was subject to the Court Officers Act, 1926, section 65, and was at the disposal of the judge. This section created a general prohibition on the disposal of documents albeit one from which the judge could dispense. Until there was such a dispensation there was a prohibition in place within the meaning of section 46(1)(a)(I) and the record was not within the exception. An accused person was served with a book of evidence as a means of complying with the requirements of section 6 of the Criminal Procedure Act, 1967, as amended, which did not in fact require a book to be prepared but merely that certain documents be served on an accused. The question that arose was whether the assembling of the documents mentioned in section 6, in particular statements, and the binding of them constituted the creation of a record within the meaning of the Freedom of Information Act, 1997, section 46(1)(b). If originality was a necessary ingredient before it could be said that a document had been created for the purposes of section 46, then merely to compile in book form documents prepared elsewhere would be insufficient. However, in order to interpret the word Acreated@ in relation to a record it was necessary to look at the definition of "record" in section 2 of the 1997 Act which provides that "record" included a copy of any document. Clearly originality was not a necessary ingredient and the compilation of the documents mentioned in section 6 of the 1967 Act, even if the same were to consist solely of the photocopying of documents prepared elsewhere and putting same into a book, was the creation of a record within the meaning of the 1997 Act. This being so, section 46(1)(b) applied to the book of evidence and documents contained therein as they were a record created by the Director of Public Prosecutions or the Office of the Director of Public Prosecutions. Insofar as the Director of Public Prosecutions or his office had control of the original statements and other documents which were the source of documents complied into the book of evidence, then clearly these were documents held by the Director of Public Prosecutions having regard to the definition of "hold" in section 2(5) of the 1997 Act and were likewise affected by the provisions of section 46(1)(b). Such documents if also held by another public body subject to other provisions of the 1997 Act might be accessible on application to that body.

That left only to be considered the two claims in respect of payments of fees. Mr Justice Finnegan said that all he knew of these was that they relate to medical reports on Mrs Rogers. Those documents were held by the court and he had no information to enable him to determine whether or not they came within the exception in section 46(1)(a)(I). On the papers, it did not seem that the Information Commissioner had any more information on these documents than was available to the court. Section 34(12)(b) provides that on a review by the information commissioner, a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified. On the information available to the court, it had not been shown that the refusal to grant a request in relation to the two claims for payment of fees in respect of medical reports on Mrs Rogers was justified and the commissioner quite properly granted access to the same. It was important however to point out that upon full information in relation to the nature of those documents being available they might well be documents falling within the exemptions in section 46(1)(a) or (b) of the 1997 Act. For example, they might relate to proceedings not held in public in the sense that the court had construed "proceedings".

Mr Justice Finnegan made an order discharging the decision of the Information Commissioner and substituting therefor an order that Patrick Rogers be granted access to two claims in respect of payment of fees in respect of medical reports on Mrs Rogers.

Solicitors: The Chief State Solicitor for the Minister for Justice Equality and Law Reform and the Director of Public Prosecutions; Mason Hayes & Curran (Dublin) for the Information Commissioner; BCM Hanby Wallace (Dublin) for the Courts Services.