Decision
Mr X and Defence Forces
From Office of the Information Commissioner (OIC)
Case number: OIC-142660-M6W5S7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142660-M6W5S7
Published on
Whether the Defence Forces were justified in refusing access to records comprising all correspondence between a named individual and the Defence Forces Chief of Staff in relation to the applicant
26 April 2024
In a request dated 4 July 2023, the applicant sought access to records comprising all correspondence relating to him between a named individual and the Defence Forces Chief of Staff. In a decision dated 25 August 2023, the Defence Forces refused the applicant’s request, citing section 32(1)(a) of the FOI Act as the basis for its decision. On 15 September 2023, the applicant sought an internal review of the Defence Forces’ decision. On 25 September 2023, the Defence Forces issued its internal review decision, wherein it affirmed its original decision. On 27 September 2023, the applicant applied to this Office for a review of the Defence Forces’ decision.
In the course of this review, the Defence Forces identified seven records that fell within the scope of the applicant’s FOI request, and indicated in correspondence with this Office that it was seeking to rely on an additional provision of the FOI Act, namely section 31(1)(a), as a basis on which to withhold records 6 and 7. As the applicant had not had an opportunity to consider the potential applicability of section 31(1)(a) in the context of this case, I wrote to him to put him on notice of same and to invite him to make any further submissions that he wished in relation to the matter. The applicant subsequently made further submissions which I have considered in full.
In addition, it should be noted that, in its submissions to this Office, the Defence Forces indicated that the records at issue were connected with an ongoing Military Police investigation. In the course of this review the applicant contacted this Office to indicate that the relevant investigation had now been completed, and provided us with documentary evidence to this effect. I therefore contacted the Defence Forces to explore the possibility of resolving the matter on the basis of the release of the records, given that the investigation to which they related had now been finalised. In response, the Defence Forces indicated that it retained certain reservations regarding the release of the records, and made further submissions on this point. I address these arguments in full below.
Furthermore, in the course of this review I formed the opinion that I was required to consider the potential applicability of section 37 of the FOI Act to the records at issue. I therefore contacted both parties to advise them of this and to invite them to make any submissions that they wished on section 37. Both parties subsequently made submissions on this point, and I have considered these in full.
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 applicant’s comments in his application for review and to the submissions made by the parties. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Defence Forces was justified, under sections, 31(1)(a), 32(1)(a) and 37 of the FOI Act, in refusing access to the records sought by the applicant.
Before I consider the substantive issues arising, I would like to make a number of preliminary comments.
Firstly, section 13(4) of the FOI Act provides that in deciding whether to grant or to refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question in this case, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.
Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the records at issue and of the reasons for my findings are limited in this case.
Thirdly, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our role is confined to a consideration of the decision made on the FOI request.
Finally, it is important to note that 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.
Section 31(1)(a)
I consider it appropriate to examine first of all the applicability of section 31(1)(a) of the FOI Act, upon which (as outlined above) the Defence Forces relied as a basis to refuse access to records 6 and 7. Record 6 is a thread of internal email correspondence within the Defence Forces in relation to the subject matter of the FOI request, spanning the period 14 December 2022 to 25 January 2023. Record 7 is also a thread of internal Defence Forces email correspondence, encompassing the dates 12 July to 17 August 2023. This record also includes, as forwarded correspondence and attachments, certain items of external communication.
Section 31(1)(a) provides that an FOI body shall refuse shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. In its initial submissions, the Defence Forces stated that section 31(1)(a) applied to the records at issue on the basis that the records comprised correspondence between the Defence Forces Chief of Staff and its Legal Services branch, wherein legal advice was being sought concerning certain relevant external correspondence received.
In deciding whether section 31(1)(a) is applicable, the issue to be considered is whether or not the record concerned would be withheld on the ground of legal professional privilege (LPP) in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication – firstly, confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege), and secondly confidential communications made between the client and a professional legal adviser, or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
In its initial submissions, the Defence Forces did not specify which of the two types of LPP it considered applied to the records at issue. However, I have examined the contents of the records and the Defence Forces’ submissions, and I accept that the records at issue demonstrate the Defence Forces seeking legal advice from its Legal Services branch, and therefore that advice privilege is the appropriate form of LPP to be considered. It should be noted that, in the case of legal advice privilege, the concept of "once privileged always privileged" applies, meaning that, unless otherwise lost or waived, legal advice privilege lasts indefinitely.
In order for legal advice privilege to apply, the relevant communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. I accept that this is the case in respect of the correspondence contained in records 6 and 7. Moreover, although certain correspondence in the records may not, on an individual basis, satisfy the criteria for the attraction of LPP (for example the items of external communication included as forwards or attachments to record 7), it is established that such material may form part of a series of communications which was for the purpose of giving or receiving legal advice. I further accept that the relevant material in the records at issue fulfils these criteria, in other words that it forms part of a continuum of correspondence that results from the original request for advice.
In his submissions on section 31(1)(a), the applicant stated that he wished it noted that, when he was informed in April 2023 of the complaint that underpinned the relevant Military Police investigation, it was indicated that he was a witness in a separate investigation. In June 2023, he stated, it became apparent that he was in fact the primary focus of the investigation. The applicant stated that the level of what he described as “indecision and lack of transparency” throughout on the part of the Defence Forces was alarming and, to his mind, raised doubts about the intentions of Defence Forces management. In addition, the applicant stated that in July 2023, he voluntarily attended an interview under caution conducted by the Military Police, accompanied by his legal representative, in the course of which he was presented with several items of evidence. He stated that it had been verbally agreed with the investigating officer that he would be furnished with the relevant items of evidence. The applicant stated that this verbal agreement was not honoured by the Defence Forces, despite two unanswered requests from his legal counsel representative.
I can certainly sympathise with the applicant who, by his account, has been left dissatisfied by the nature of his interactions with the Defence Forces throughout the relevant Military Police investigation. However, as outlined above, it is not within my remit to make any findings on the manner in which the Defence Forces has carried out the relevant investigation generally. Nor, in my view, do the applicant’s submissions address the question of whether records 6 and 7 are, in fact, legally privileged such as to fall within the scope of section 31(1)(a) of the FOI Act. As set out above, I have accepted that the relevant material in the records fulfils the relevant criteria for exemption under section 31(1)(a). Furthermore, as referenced above, the concept of “one privileged, always privileged” applies to material that benefits from legal advice privilege. As such, the fact that the relevant Military Police investigation is now complete does not remove the protection of legal advice privilege from the records.
Accordingly, I accept that records 6 and 7 would be exempt from production in proceedings in a court on the ground of LPP (specifically, legal advice privilege). It follows that section 31(1)(a) applies to these records and I find that they are exempt under this provision of the FOI Act.
In circumstances where I have found records 6 and 7 to be exempt from release under section 31(1)(a) of the FOI Act, I am not required to consider whether they might also be exempt under any other potentially applicable provisions of the FOI Act.
Section 37
As outlined above, in the course of conducting this review I formed the view that section 37 of the FOI Act was potentially applicable to the records at issue. As I have found records 6 and 7 to be exempt from release under section 31(1)(a) of the FOI Act, I must consider the extent to which the remaining records, namely records 1 to 5, might be exempt from release under section 37. The relevant records are as follows.
Section 37 of the FOI Act as a whole relates to personal information, and the effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester.
Section 37(1)
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In its submissions regarding section 37(1), the Defence Forces stated that the information in the records related to a sensitive matter and disclosed personal information about a third party, whose identity (in the view of the Defence Forces) should not be released. The Defence Forces stated that its view was that the records contained information that was transmitted in confidence from the relevant third party to the Chief of Staff and argued that harm could result to the third party if the records were released to the requester. The Defence Forces noted that release of information under FOI is generally considered to be release of the information to the world at large, given that no restrictions are placed upon the use to which records released under FOI can subsequently be put.
In submissions made by the applicant, he argued that section 37(1) should not apply to exempt the records from release. He made clear that he considered that he was aware of the identity of the relevant third party, and stated that in his view the third party’s communication with his employer was aimed at inflicting both professional and personal harm upon him. He argued that this aligned with what he alleged was a consistent pattern of behaviour from the third party that involved ongoing harassment of his family and friends. The applicant stated that, in light of this this established pattern and the decision of the Chief of Staff of the Defence Forces to engage with the third party without notifying him, he should be entitled to access the relevant correspondence, having due regard to fair procedures and the application of natural justice. The applicant went on to reiterate his view that the Defence Forces had severely mishandled the matter, and outlined in considerable detail the grounds upon which he held this view.
I have carefully considered the arguments of the parties, as well as taking into account the contents of the records, and I find as follows in relation to section 37(1). Firstly, I must note that I am required to discount the arguments of the applicant in relation to the alleged motives and behaviour of the third party, and in relation to the supposed requirements of natural justice and fair procedures. While such arguments may well be relevant for the purposes of the wider engagement between the applicant and the Defence Forces in relation to the matters that underpinned the applicant’s FOI request, they do not address the question of whether the information in the records is personal for the purposes of section 2 of the FOI Act. In relation to particular parts of all five of the relevant records (which I specify below), I accept the arguments of the Defence Forces and am satisfied that the records contain personal information, for the purposes of section 2, solely related to a number of third parties other than the requester. These portions of the records are therefore squarely within scope of section 37(1). The parts of each record in respect of which I make this finding are as follows.
In addition, I consider that parts of certain records comprise personal information of the applicant that is intermingled with personal information of third parties. Therefore, section 37(7) of the FOI Act must also be considered in respect of this information.
Section 37(7)
Section 37(2)(a) of the FOI Act provides that the exemption at section 37(1) does not apply if the personal information concerned relates to the requester concerned. However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. The net effect of section 37(7) is that, where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.
I have carefully considered the contents of the relevant records and find that the following parts of the records contain both personal information relating both to the applicant and to third parties.
I take the view that it is not practicable to separate the personal information relating to the applicant from that relating to the relevant third party individuals. As such, I consider that the above information is joint personal information for the purposes of section 37(7) of the FOI Act.
Other relevant provisions of section 37
In relation to the information in the records that I have found to be personal to third parties, the matter does not end there as section 37(1) is subject to the other provisions of section 37. In addition, Section 37(7) is subject to sections 37(2)(b) to (e), 37(5) and 37(8). I am satisfied that the latter subsection of section 37 is not relevant in this case.
Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply to the information I have found to be subject to section 37(1). I am also satisfied that sections 37(2)(b) to (e) do not operate to preclude the application of section 37(7).
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply to preclude the operation of either sections 37(1) or 37(7) in this case.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, and as noted above, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the FOI Act places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the FOI Act, such as under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the FOI Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) which provides that in performing any functions under the FOI Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In his submissions on section 37(5)(a), the applicant indicated his belief that the release of the information in the records, particularly the Chief of Staff's correspondence with a named individual, would be in the public interest. He stated that he considered the Chief of Staff’s correspondence to the individual to have been highly unprofessional given his role as a public servant and leader within a State organisation. The applicant contended that it was concerning that the Chief of Staff would engage in correspondence with a member of the public regarding a matter that, in the applicant’s view, was entirely private and unrelated to the workplace.
I have considered the argument of the applicant above and on the whole take the view that, while he is seeking the release of the records in pursuance of what I believe to be largely a private interest, nonetheless he has identified a valid public interest in ensuring that senior staff within State organisations such as the Defence Forces are carrying out their official role in a manner that is correct and appropriate.
In its submissions on section 37, the Defence Forces did not specifically address section 37(5)(a). However, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the FOI Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
I accept that the release of the information in the records that I have identified as personal, for the purposes of section 2 of the FOI Act, would tend to serve the public interest in ensuring that senior staff in State bodies carry out their functions in a correct and appropriate manner. However, it seems to me that the degree to which the release of the specific information that I have found to be within the scope of section 37(1) would strengthen this public interest is quite limited. On the other hand, the records at issue are of an inherently sensitive and private nature and I must regard their release as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant third parties. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that records 1 to 5 are exempt from release under section 37(1) and/or 37(7), with the exception of the following parts of the records, which I find do not contain personal information for the purposes of section 2 of the FOI Act.
The basis on which I find that the above material does not constitute personal information is that it is information written by office holders in the Defence Forces in the course of and for the purpose of the performance of their official functions. It therefore falls within the scope of the exception to the definition of personal information contained in Paragraph I of section 2 of the FOI Act, which I have outlined above.
In relation to the material in the records that I have found above not to be exempt from release under section 37 of the FOI Act, I must now go on to consider the extent to which it may be exempt under section 32(1)(a) of the FOI Act.
Section 32(1)(a)
In its submissions, the Defence Forces indicated that it sought to rely on subsections (i) and (ii) of section 32(1)(a) of the FOI Act. Section 32(1)(a) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in the opinion of the body, reasonably be expected to prejudice or impair
In its initial submissions on section 32(1)(a), the Defence Forces argued that subsections (i) and/or (ii) applied to exempt the records from release on the basis that, due to the sensitive nature of the content of the relevant complaint, the premature release of the records could reasonably be expected to prejudice or impair the conduct of the relevant Military Police investigation which, at the time of the submissions, was ongoing. The Defence Forces again referred to the fact that the release of records under FOI is generally considered to equate to release to the world at large, and argued on this basis that the release of the records while the investigation was ongoing could hamper the investigative process. It stated that this harm to the investigation could arise in circumstances where the release of the records could allow the applicant, or members of the public, to “log appeals/complaints” without a full investigation of the complaint having been carried out. Moreover, the Defence Forces argued that release of the records could harm the party who had made the relevant complaint, as they could be identified by the release of the records, which, it argued, could further prejudice or impair the conduct of the investigation.
As outlined above, subsequent to receiving notification from the applicant that the relevant investigation had been completed, I sought further submissions from the Defence Forces in relation to grounds on which it continued to maintain that section 32(1)(a) of the FOI Act applied. In its subsequent submissions, the Defence Forces argued that it retained concerns regarding the release of the records, and set out a number of specific points in support of this argument. Due to the requirements of section 25(3) of the FOI Act, which as outlined above requires me to take all reasonable precautions to prevent the disclosure of information contained in an exempt record, I do not consider that I am at liberty to relate the details of these specific points, though I confirm that I have taken them on board in my analysis.
In relation to the above arguments of the Defence Forces, I find as follows. Firstly, in relation to the internal Defence Forces email of 10 July 2023, at page 1 of record 1, and in relation to page 1 of record 2 (apart from the final three lines of the record which I have found to be exempt under section 37), I do not accept that the release of this information could reasonably be expected to cause the harms provided for in section 32(1)(a)(i) or (ii). My view is that this information is standard, routine, internal Defence Forces correspondence, essentially forwarding received correspondence to the relevant parties within the Defence Forces to be further addressed. It says nothing about the matter raised in the relevant correspondence, or the ensuing investigation. Therefore, I cannot see any way in which this information would hamper an investigative process or assist the applicant (or a member of the public) in logging “appeals/complaints” in relation to the investigation. I similarly cannot envisage a way in which the release of the material could prejudice or impair the conduct of the relevant investigation by identifying the complainant because, in short, the relevant material does not contain information that identifies the relevant individual. I therefore find that neither sections 32(1)(a)(i) or (ii) apply to exempt from release either the email of 10 July 2023 at page 1 of record 1, or page 1 of record 2 (apart from the final three lines which are exempt under section 37).
In conclusion, I do not accept the arguments of the Defence Forces under sections 32(1)(a)(i) and (ii) in relation to the internal Defence Forces email of 10 July 2023 (at page 1 of record 1), or page 1 of record 2 (aside from the final three lines which are exempt under section 37(1) of the FOI Act). For the reasons outlined above, I do not consider that the release of this information could prejudice or impair either the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters (for the purposes of section 32(1)(a)(i) of the FOI Act); or the enforcement of, compliance with or administration of any law (for the purposes of section 32(1)(a)(ii) of the FOI Act). I find that neither sections 32(1)(a)(i) nor (ii) apply to exempt from release this information in the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Defence Forces. I find that the Defence Forces were entitled to refuse access to records 6 and 7 under section 31(1)(a) of the FOI Act. I further find that the Defence Forces were justified in withholding records 3 and 4 under section 37(1) of the FOI Act. In addition, I find that the Defence Forces were entitled to refuse access, under sections 37(1) and 37(7) of the FOI Act, to those parts of records 1, 2 and 5 that I have identified above as containing either personal information or joint personal information. However, I find that the Defence Forces were not justified under any of the exemptions it cited in withholding the email of 10 July 2023 (at page 1 of record 1), or page 1 of record 2 (aside from the final three lines which are exempt under section 37(1) of the FOI Act), and I direct the release of that information.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Neill Dougan, investigator