Decision
Mr X and Department of Defence
From Office of the Information Commissioner (OIC)
Case number: OIC-140461-K4Z1W4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-140461-K4Z1W4
Published on
Whether the Department was justified in refusing access to records relating to the publication of a particular report
13 October 2023
In a request dated 3 May 2023, the applicant sought access to records “referring or relating to the inadvertent publication of an incorrectly redacted version of the Mohan report online by the department”. In a decision dated 31 May 2023, the Department refused the applicant’s request on the basis of section 42(ja) of the FOI Act. On 2 June 2023, the applicant sought an internal review of the Department’s decision. On 21 June 2023, the Department affirmed its original decision. On 13 July 2023, the applicant applied to this Office for a review of the Department’s decision.
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 and the Department and to correspondence between the parties. I have also considered the content of the records. I have decided to conclude this review by way of a formal, binding decision.
The Department did not initially provide this Office with records identified in respect of the applicant’s request. I queried whether the Department carried out searches in respect of the request. In submissions received, the Department said that it did conduct searches and that records comprising emails and WhatsApp messages were identified. It confirmed the areas that were contacted on foot of the request. However, the submissions did not provide a sufficient description of the type of records at issue to enable an assessment of whether the Department’s decision was justified. Accordingly, I requested that copies of the relevant records be provided. Records were duly received.
The Department identified three records as coming within the scope of the request. Records 1 and 3 are copies of email correspondence while record 2 is a transcript of WhatsApp messages.
During the course of the review, this Office identified information in the records which comprises personal information, specifically the names and contact details of third parties and a staff member’s mobile phone number. The applicant has confirmed that he is happy to remove from the scope of his request personal information relating to identifiable individuals that would be exempt under section 37 of the FOI Act, which protects personal information. As such, and on the understanding that the Department will redact this information, I will not consider it within the scope of this review.
This review is therefore solely concerned with whether the Department was justified in refusing access to the relevant records on the basis of section 42(ja) of the FOI Act. I have also considered other submissions made by the Department.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
It is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
A review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of additional mandatory exemptions, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the records in the FOI body’s decisions on the request.
The records at issue
While I am limited in the extent to which I can describe the records at issue, I believe it would be useful to provide some context in respect of the subject matter of the records requested. A Department press release dated 24 March 2023 provides the following information:
“A protected disclosure was made in March 2021 about a lunch/BBQ held in McKee Barracks, alleging a breach of COVID-19 regulations and the physical and sexual assault of two female members of the Defence Forces at the event. Hugh Mohan SC was asked to conduct an independent assessment into the planning, organisation and holding of the lunch/BBQ in McKee Barracks on the 25 June 2020 including whether the relevant requirements under COVID-19 legislation at the time, were complied with fully by the Defence Forces. There has been a conviction for a number of offences including sexual assault in the Court Martial system and sentencing is awaited.”
The Mohan Report, as it is referred to, has been published and is available on www.gov.ie. The applicant’s request is for records relating to the “inadvertent publication” of an incorrectly redacted version of that report.
The Department’s position is that section 42(ja) serves to restrict the application of the FOI Act such that it does not apply to the records in question. In its submissions, the Department also stated that the Mohan report is subject to an order made by a military judge under section 194 of the Defence Act 1954. It said that this order prohibits the publication of information in relation to Court Martial proceedings or any particular part of them. I will consider the arguments made in this regard below.
Section 42(ja) – restriction of Act
A protected disclosure is a disclosure by a worker of relevant information that came to the attention of the worker in a work-related context and the worker reasonably believes that the relevant information tends to show relevant wrongdoing. The Protected Disclosures Act 2014 provides certain protections to those who make protected disclosures. The Act has recently been supplemented by the Protected Disclosures (Amendment) Act 2022 (the 2022 Amendment Act), which came into operation on 1 January 2023. Section 20 of the 2022 Amendment Act amends the FOI Act by inserting a new sub-section, namely section 42(ja).
Section 42(ja) provides that the FOI Act does not apply to “a record relating to a report, within the meaning of the Protected Disclosures Act 2014, made under that Act, whether the report was made before or after the date of the passing of the Protected Disclosures (Amendment) Act 2022”. Section 4 of the 2022 Amendment Act defines “report” or “to report” as “the oral or written communication of information on relevant wrongdoings”.
In its submissions, the Department said that the decision to refuse the records was taken “in an abundance of caution so as not to disclose anything connected to or related to the court order by the military judge which still applies; and to protect and preserve the integrity of the protected disclosures and the FOI processes”. It referenced a number of provisions of the Protected Disclosures Act 2014 including section 16 which is concerned with the protection of the identity of the maker of a protected disclosure. It also referenced interim guidance in respect of the Protected Disclosures Act published by the Department of Public Expenditure and Reform and references therein to confidentiality and the protection of identity. It said that any material relating to a protected disclosure in any manner was deemed exempt to ensure that an abundance of caution was adhered to.
In further submissions, the Department said that the records in question only exist because a protected disclosure was made. It said that the records sought relate to a report made under the Protected Disclosures Act though it also acknowledged that “it is apparent that they are somewhat distant from the actual disclosure made”. It said that section 42(ja) does not provide for any “degree of proximity” between the relevant records and the report. It said that it is the Department’s position that once the record relates in any way to the original report, the record is exempt from the FOI Act. It said that the fact that the records would not exist but for the protected disclosure provides a substantial link irrespective of their content.
The Department said that if a precedent is set whereby records can be accessed depending on their degree of proximity, this would put the Department and decision makers at considerable risk if a mistake is made.
The applicant’s position is that “the connection between the records sought and the actual protected disclosure is extremely tenuous”. He said that he does not believe that the amendment to the FOI Act was intended to mean that any record, “no matter how tangentially or distantly connected to a report on a protected disclosure”, would be exempt. He provided a number of examples of how the above interpretation could impact various requests for records. In his application for internal review, the applicant said that he does not believe that records relating to an error made by the Department in publication can be considered to “relate” to a protected disclosure.
The Department is correct in stating that section 42(ja) does not explicitly provide for any particular “degree of proximity” between the relevant records and a report under the Protected Disclosures Act. In considering whether the records are records “relating to” a report made under the Protected Disclosures Act, I have adopted the reasoning in the case of EH v The Information Commissioner [2001] IEHC 182. In that case, the High Court considered the question of whether records “related to” the requester’s personal information. The Court found that the test to be applied to determine whether a record “relates to” the personal information was “whether there is a sufficiently substantial link” between the requester’s personal information and the record in question.
The records in question in this case relate to the publication of an incorrectly redacted version of the Mohan report. They relate to the identification of the issue and the reaction and response of Department staff to same. It seems to me that the records were created in the context of that erroneous publication. The Department itself acknowledged that the records are “somewhat distant” from the protected disclosure in question. While the Mohan report itself could be argued to relate to a report made under the Protected Disclosures Act, I am not satisfied that there is a sufficiently substantial link between the original protected disclosure and administrative records relating to the publication of an incorrectly redacted version of a subsequent report. I am not satisfied that the content of the specific records sought is such that they could be said to relate to a protected disclosure.
The Department expressed concerns about the risks inherent in determining whether records are sufficiently related to a protected disclosure. I would note that such risks exist in respect of each FOI request processed. FOI bodies are frequently called upon to consider whether records containing sensitive and personal information should be released or the extent to which exemption provisions apply. I consider this activity to be central to the performance of functions under the FOI Act. As such, I do not accept that concerns in respect of risk associated with the processing of a request serve to justify the Department’s reliance on section 42(ja) in this case.
For the reasons outlined above, I am not satisfied that a sufficiently substantial link exists between the records in question and a report made under the Protected Disclosures Act. As such, I find that the Department was not justified in refusing access to records 1, 2 and 3 on the basis of section 42(ja) of the FOI Act.
Additional submissions made
As noted above, the Department’s submissions referenced an order made by a military judge under section 194 of the Defence Act 1954. It said that the Mohan report is subject to an order which prohibits the publication of information in relation to court martial proceedings or any particular part of them. It said that this information is included at the outset of the Mohan report.
It said that the Department is acting with an abundance of caution in relation to the matter “so as not to interfere with the legal proceedings or breach the court order in place”. It said that release under the FOI Act effectively amounts to release to the world at large, “thereby potentially jeopardising the active legal proceedings”. It said that subject to the outcome of certain proceedings, the Department may be in a position to review its decision.
The Department has not relied on any exemption grounds in support of its position, nor has it provided substantive submissions in respect of the military court order referenced. It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.
While FOI bodies must justify their decisions, a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, this Office must adjudicate the merits of the decision to refuse through an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
In light of the Department’s submissions, it seems to me that section 31(1)(b) merits consideration. Section 31(1)(b) is a mandatory exemption which provides for the refusal of a request if the record is such that the head of the FOI body knows or ought reasonably to have known that its disclosure would constitute contempt of court. Contempt of court can arise in a number of ways. The Commissioner’s understanding is that for contempt to have occurred a party would have to contravene a court order or undertaking made to a court, commit an act of resistance to the court, or engage in conduct liable to prejudice the trial of an accused person.
Section 194 of the Defence Act 1954 concerns admission to courts-martial and provides that courts-martial shall be public. The section was substituted by the Defence (Amendment) Act 2007, which the Department made no reference to. Subsection (2)(b) provides that, in certain circumstances, the military judge may prohibit the publication of information in relation to proceedings or any particular part of them. While the Department has not specified the relevant subsection, the above mirrors the language used at the beginning of the Mohan report. Section 208 of the Defence Act relates to what constitutes contempt of court-martial.
I have carefully considered the content of the three records identified as relevant to the applicant’s request. As noted above, the records are administrative in nature and concern the Department’s response to its own publication of an incorrectly redacted version of the Mohan report. While I am limited in the extent to which I can describe their contents, I would note that the records do not contain any substantive information in respect of the Mohan report or the incident which was the subject of that investigation. Nor do they contain substantive information in respect of court-martial proceedings, other than references to the section 194 order. The records contain only limited information in respect of the type of information which had been erroneously released on foot of the publication of an incorrectly redacted version of the report. Given the limited arguments advanced by the Department, and in light of the nature and content of the specific records at issue, I am not satisfied that their release would constitute contempt of court.
The Department also made a brief reference to release of the records “potentially jeopardising the active legal proceedings”. Again, it has not relied on any relevant exemption provision in this regard. Section 32(1)(a) of the FOI Act is a harm based exemption which applies where access to a relevant record could reasonably be expected to prejudice or impair certain matters including criminal and civil proceedings. It is a discretionary exemption which the Department has not sought to rely on. For the avoidance of doubt, no evidence has been put before me to substantiate a reliance on section 32(1)(a) of the FOI Act, nor is the application of the subsection evident to me having carefully considered the records.
I am satisfied that no further provisions of the FOI Act serve to exempt the records in question from release.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that the Department was not justified in its decision to refuse access to the records under section 42(ja) and I direct their release, subject to the redaction of personal information therein.
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.
Alison Connolly, investigator