Decision
Mr. X and Defence Forces
From Office of the Information Commissioner (OIC)
Case number: OIC-142771-T8S4P0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142771-T8S4P0
Published on
Whether the Defence Forces was justified in refusing access to certain correspondence between the applicant and a particular officer
12/04/2024
The applicant is a member of the Defence Forces. His FOI request to the Defence Forces of 10 April 2023 sought access to “[c]opies of all correspondence between [officer of particular rank] and I from 01 Jan 21 and 31 Mar 2023.” He provided his own defenceforces.ie email address and that of the officer. The Defence Forces effectively refused the request by not issuing a decision within the four-week timeframe required by the FOI Act.
The applicant sought an internal review of the matter on 14 August 2023. On 27 September 2023, the Defence Forces notified the applicant that it had identified 70 records covered by the request. It said that it was granting full access to three records, fully withholding 25, and granting partial access to the remainder. In particular, it said it was fully withholding records 6, 34, 36, 49, 50, 51, 53, 64, and 70 under section 33(2)(a) (a provision of section 33 of the FOI Act, which relates to security, defence and international relations). It withheld the remaining records and parts of records under section 37(1) of the FOI Act (personal information).
On 30 September 2023, the applicant applied to this Office for a review of the Defence Forces’ decision, including whether the body had taken reasonable steps to search for records covered by his request (section 15(1)(a)). He also outlined concerns over the Defence Forces’ handling of his request.
During the review, the applicant confirmed that the section 15(1)(a) aspect thereof could be narrowed to particular correspondence. The Defence Forces subsequently confirmed that it had located and would release such correspondence. If it has not already released this correspondence, it should do so without delay.
Of the records initially withheld under section 33 of the FOI Act, the Defence Forces also agreed to release records 50, 51, 53 and 64, subject to the redaction of personal information. In addition, it redacted details of various military equipment from record 64.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the Defence Forces and the applicant, the contents of the records at issue and the provisions of the FOI Act.
As the applicant knows, I have taken it that there is no need for my decision to consider section 15(1)(a) of the FOI Act in the circumstances described above.
Further to my views on the matter, the applicant confirmed that my decision need not examine the Defence Forces’ reliance on section 37. He also confirmed that I need not consider the details of military equipment withheld from record 64. I also outlined my views on the relevance of section 37 to records 34 and 36 (which had initially been withheld under section 33) and also to record 40, which the Defence Forces’ schedule had erroneously described as granted in full. As the applicant is aware, I am taking it that my decision need not include these records.
Accordingly, this review is confined to whether the Defence Forces’ refusal of records 6, 49 and 70 is justified under the provisions of the FOI Act.
The applicant says that the Defence Forces’ delays in part-granting his request are not in keeping with the principles of the FOI Act. He says that the delays have impacted on legal proceedings and on his ability to pursue certain other matters. However, a review carried out under section 22 of the FOI Act cannot examine such issues. Neither can I take account of the applicant’s views on these matters. In particular, an FOI body’s handling of an FOI request is not a factor in considering whether to direct the release, or otherwise, of the requested records.
Section 13(4) of the FOI Act provides that, subject to the 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.
Section 25(3) of the Act requires me to take all reasonable precautions in the performance of my functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. I am also limited in the extent to which I can describe my queries to the Defence Forces and its replies.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
Finally, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that "it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest." I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard".
However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that 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 by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
Defence Forces’ decision making
The final preliminary matter concerns the FOI Act’s requirements for the issuing of original and internal review decisions. In particular, sections 13(1) and 21(4) require FOI bodies to issue original and internal review decisions within four and three weeks, respectively, after receipt of the FOI request or application for internal review. As described in the Background section, the Defence Forces did not comply with these requirements in relation to either the applicant’s original request or his application for internal review.
Furthermore, sections 13(2)(d) and 21(5)(c) require that, where an FOI body decides to refuse to grant a request, the notification of the decision shall specify various matters, including the reasons for the refusal and the findings on any material issues relevant to the decision. I will comment later on the Defence Forces’ refusal of records under section 33(2)(a).
The Defence Forces may wish to have regard to the guidance for FOI bodies that is available on the website of the Department for Public Expenditure, NDP Delivery and Reform's Central Policy Unit In addition, the Minister for Public Expenditure, NDP Delivery and Reform has published a Code of Practice (the Code) for public bodies pursuant to section 48 of the Act, which is also available on the CPU's website. The Code includes key details relevant to the processing of requests and the contents of decisions. Under section 48(3) of the FOI Act, public bodies must have regard to the Code in the performance of their functions under the Act.
Bearing in mind the requirements of section 25(3), and according to the Defence Forces’ schedule, record 6 concerns Test Weapons; record 49 concerns Security Procedures; and record 70 concerns Escort Notifications. The Defence Forces appears to rely on sections 33(1)(a) and/or (b) of the FOI Act in relation to the records. However, in light of its arguments, I intend to firstly consider the records under section 32(1)(c). The applicant is aware that I intend to do so.
Section 32(1)(c) – facilitate the commission of an offence
Section 32(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to facilitate the commission of an offence. Section 32(3) provides that the public interest in the release of a record which is exempt under section 32(1) is only required to be considered in limited circumstances.
An FOI body relying on section 32(1)(c) should indicate the nature of the relevant offence(s) and show how release of the particular record at issue could make the commission of the offence(s) easier. The Commissioner has considered this provision and the meaning of "facilitate", noting that the Oxford English Dictionary states that the word "facilitate" means "to make easier" or "to render easier". He has found that the question is not whether such an offence will occur, but whether release of the information could make it easier to commit an offence.
The parties’ arguments
The applicant does not comment on the potential relevance of section 32(1)(c). However, he says generally that it would have been more appropriate to redact sensitive information rather than withhold records in full. He says that full transparency is essential and that unnecessary exemptions hinder his ability to obtain important information. He says that he could have accessed many of the records if he was in the workplace.
The Defence Forces says that records 6 and 49 contain information about the transportation of weapons and security procedures that, even with the passage of time, could facilitate third parties to place various locations under surveillance, thus causing a security issue. I note that record 70 describes arrangements for arranging security escorts.
Analysis
While a person may have access to records or information in the course of their work, or may know some or all of a record’s contents, this does not necessarily mean that the person has a right of access to those records/information under FOI. Furthermore, as mentioned above, I cannot take into account the applicant’s stated needs for obtaining the records, except insofar as they correspond with a public interest.
I have no reason to dispute the Defence Forces’ position that the information about the transportation of weapons (record 6) and security arrangements (record 49) could be informative to third parties, notwithstanding the passage of time. I also accept that the information about escort notifications in record 70 has current relevance.
I am satisfied that disclosing current information relating to escort notifications, transportation of weapons, and security arrangements could make it easier for third parties to commit offences, such as covert surveillance, break-ins, theft, etc. I am satisfied, therefore, that disclosure of the contents of records 6, 49 and 70 could facilitate the commission of an offence(s). I find that section 32(1)(c) applies.
The public interest
Section 32(3) contains a limited public interest balancing test. The test differs from the general public interest balancing test that exists in a number of other exemptions in the FOI Act. In essence, under section 32(3), the public interest balancing test must be considered only in certain circumstances, namely:
If any of the above conditions are met, then it must be considered whether the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.
The applicant is aware that I do not consider any of the circumstances of section 32(3) to be relevant in this case and has not argued otherwise. However, it could be said that the details at issue comprise information falling under (ii) above, such that the public interest in their disclosure should be considered.
While I note that the applicant refers to ongoing legal proceedings and his pursuit of certain other matters, the records do not relate to such issues. However, I accept that their disclosure would disclose details of operational matters relating to the Defence Forces effectively, or at least potentially, to the world at large. It may be argued that there is a public interest in such disclosure, so that the effectiveness of the various operational arrangements may be assessed, for instance. On the other hand, however, I have found that such disclosure could facilitate the commission of an offence(s), and I do not believe that such an outcome is in the public interest.
Therefore, if relevant, I am satisfied that the public interest would, on balance, be better served by refusing to grant access to the records concerned and I find that section 32(3) does not serve to dis-apply section 32(1)(c) in this case.
In light of my findings, there is no need for me to consider the Defence Forces’ reliance on sections 33(1)(a) and/or (b) of the FOI Act. However, I will comment briefly on the Defence Forces’ reliance on section 33(2)(a), as stated in particular in its letter to the applicant of 27 September 2023.
It should be noted that section 33(2)(a) of the FOI Act is not an exemption provision. Rather, it describes types of information relating to the Defence Forces that may qualify for exemption under section 33(1). Furthermore, in order to qualify for such exemption, it must be explained how disclosure of the record could reasonably be expected to affect adversely (a) the security of the State and/or (b) the defence of the State, etc. A record does not necessarily qualify under section 33(1)(a) or (b) of the FOI Act on the basis of an assertion that its disclosure may compromise the Defence Forces’ operational activity (as stated in its letter of 27 September 2023).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Defence Forces’ refusal of access to records 6, 49 and 70, on the basis that they are exempt under section 32(1)(c) of the FOI Act.
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.
Anne Lyons, Investigator