Whether the Defence Forces were justified in refusing access to records relating to complaints made by the applicant against a named individual

1 December 2022

Background

In a request dated 4 February 2021, the applicant sought access to all documentation, statements and submissions made in relation to three complaints he had submitted against a named individual between January and May 2015.

In a decision dated 12 April 2021, the Defence Forces part-granted the request. Of the 13 records it identified as falling within the scope of the request, it released records 2 and 4 in full and records 1, 3, and 5-11 in part. The Defence Forces  withheld in full access to the remaining two records (12 and 13). It cited sections 35(1)(a), 37(1), and 33(2)(a) of the Act in support of its decision. On 19 April 2021, the applicant sought an internal review of that decision, following which the Defence Forces affirmed its original decision. On 1 October 2021, the applicant applied to this Office for a review of the decision of the Defence Forces.

In the course of this review, the Defence Forces released to the applicant the two records that it had previously withheld in their entirety, namely records 12 (with redactions made under section 33(2)(a) of the FOI Act) and 13 (in full), on the basis that the applicant had previously been provided with copies of these records in 2015. As records 12 and 13 were the two records in respect of which the Defence Forces had previously cited section 35(1)(a), that provision of the FOI Act is no longer at issue. In addition, in the course of our engagement with the Defence Forces it indicated that no redactions had been made to record 1 under section 33(2)(a) of the FOI Act (as it had initially argued), but solely under section 37(1). Accordingly, the only material to which the Defence Forces-� arguments under section 33(2)(a) apply is the redacted sections of record 12.

In relation to the Defence Forces-� reliance on subsection 2(a) of section 33, it should be noted that section 33(2)(a) does not, in and of itself, provide for an exemption to the right of access. Rather, section 33(2)(a) provides a non-exhaustive list of categories of records that may qualify for exemption under section 33(1) of the FOI Act. Accordingly, where the Defence Forces have indicated a reliance on a subsection of 33(2)(a), I will examine the extent to which the record is exempt under the provisions of section 33(1).

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 the course of his correspondence with the Defence Forces on the matter, and to the submissions made by the Defence Forces in support of its decision.  I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Defence Forces in the schedule of records it provided with its original decision.

Scope of Review

This review is concerned solely with whether the Defence Forces was justified in withholding access, in full or in part, to the records sought by the applicant, under sections 33(1) and 37(1) of the FOI Act.

Analysis and Findings

Section 37(1)

As section 37(1) of the FOI Act is, in my view, of most relevance in this case given the nature and contents of the records at issue, I will consider its applicability first. The Defence Forces cited section 37(1) as the basis for partly withholding access to records 1, 3, and 5-11, which it released to the applicant with redactions. 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. 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, unless one of the other relevant provisions of section 37 applies.

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. These include, at point (iii) of section 2, information relating to the employment or employment history of the individual and, at point (xii), the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

In addition, Paragraph (I) of section 2 of the 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 ...".

The information that has been redacted from the records comprises the ranks, names and army numbers of members of the Defence Forces, as well as the mobile telephone number of a member of the Defence Forces that appears in one record. In its submissions regarding section 37(1), the Defence Forces stated that the names and army numbers were redacted because this was information that could identify individuals who were witnesses in the Defence Forces-� investigations of the applicant-�s complaints. I consider that this argument also applies to the rank of staff members where it appears in the records in conjunction with the relevant individual-�s name.

I would note first of all that I consider that that the personal mobile number of a Defence Forces official, as redacted from record 11, falls squarely within the definition of personal information for the purposes of section 2 of the FOI Act, and as such comes within the scope of section 37(1).

In relation to the remainder of the information withheld by the Defence Forces under section 37(1), in his request for an Internal Review of its initial decision, the applicant argued that the names of office holders in the Defence Forces should not have been redacted, as he did not consider them to comprise personal information. In this context the exclusion from the definition of personal information in Paragraph (I) of section 2 of the Act, as outlined above, must be considered. As outlined in the exclusion, in the case of current or former staff members of a public body, the name of the individual, or information relating to their office, position, functions or the terms upon and subject to which they are employed, or anything written or recorded in any form by that individual in the course of and for the purpose of the performance of their official functions, is not personal information.  Needless to say, staff members of the Defence Forces fall within the category of current or former officials of a public body. As such, the question arises as to whether the names of such staff members who were called to give witness statements provided in the course of the investigation of a complaint fall within the category of information relating to the individual-�s office, position, etc., or information recorded in the course of and for the purpose of the performance of their official functions.

In this regard, it should be noted that the exclusion at Paragraph (I) of section 2 of the Act does not provide for the exclusion ofallinformation relating to such staff or office holders. This Office takes the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member, office holder etc., in an FOI body in the context of the particular position held or any records created by the staff member, office holder etc., while carrying out his or her official functions. The exclusion does not deprive staff members, office holders etc. in FOI bodies of the right to privacy generally.

Bearing the above in mind, I consider on balance that that the provision of witness statements in the context of an investigation of alleged workplace incidents is not an activity that can be said to fall within the scope of the official functions of an employee, official, etc. within a public body. Rather, I consider that such statements are the personal views and opinions of individual employees in relation to the alleged incident.  In those circumstances, I find that that the names and ranks of Defence Forces staff members who gave witness statements or who are named in the context of the relevant investigations do not fall within the exclusion from the definition of personal information provided for in Paragraph (I) of section 2 , and that therefore this information comes within the scope of section 37(1) of the FOI Act.

I note that witness statements and the relevant investigations are not the only contexts in which the ranks and names of staff members of the Defence Forces have been redacted from the records. For example, record 1 includes a narrative report of the sequence of events that caused the applicant to make one of the complaints at issue. The names and ranks of Defence Forces staff members that have been redacted from this record appear, not in the context of witness statements they have made, or of their participation in the relevant investigations, but rather in the context of certain interactions that they had with the complainant in the course of events leading up to the complaint. A number of these occasions in the records where the names and ranks of Defence Forces staff members appear would seem to relate to instances of the relevant individual carrying out their ordinary day-to-day functions. As such, it might ordinarily be the case that the redacted information would fall within the exclusion from the definition of personal information in Paragraph (I) of section 2. However, in this instance, the relevant information is housed in a document created solely for the purpose of the investigation of a complaint about alleged wrongdoing, and the references to those named staff members appear in the context of the background to the complaint. In those circumstances, the I find that such references to the names and ranks of staff members of the Defence Forces are not excluded from the definition of personal information in Paragraph (I) of section 2, and accordingly come within the scope of section 37(1) of the FOI Act. I make a similar finding in respect of the army numbers of staff members of the Defence Forces, where same appear in the records.

On the basis of the above analysis, I accept that the names and army numbers of members of the Defence Forces, as well as the ranks of such members where they appear in conjunction with the name of the relevant individual, is personal information that falls within the scope of section 37(1). The same applies to the personal mobile number of a member of the Defence Forces that appears in one of the records.

However, that is not the end of the matter, as section 37(1) of the FOI Act is subject to the other provisions of section 37. 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) of the FOI Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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.

When considering the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

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.

The information that I have identified as falling within the scope of section 37(1) of the FOI Act is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individual. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Defence Forces were justified in refusing access, under section 37(1) of the FOI Act, to the information in the records that I have identified as personal for the purposes of section 2.

Section 33(1)

The Defence Forces cited section 33(2)(a) of the FOI Act as a basis for withholding in part access to record 12. However, as outlined above, section 33(2)(a) does not, in and of itself, provide for an exemption to the right of access. Rather, section 33(2)(a) provides a non-exhaustive list of categories of records that may qualify for exemption. Records falling within section 33(2), with the exception of those referred to at subsections (2)(b)(i) and (ii), may be refused under subsection (1) of section 33, provided the harm test in subsection (1) is met. Having regard to the content of the records at issue, I do not consider that sections 33(2)(b)(i) or (ii) apply in this case. As such, I consider it appropriate in the circumstances to consider the applicability of section 33(1) to the information in respect of which the Defence Forces cited section 33(2)(a).
Section 33(1) provides that an FOI body may refuse access to a record if, in its opinion, access to the record could reasonably be expected to affect adversely (a) the security of the State, (b) the defence of the State, (c) matters relating to Northern Ireland, or (d) the international relations of the State. I consider that subsections (c) and (d) are not relevant to this case, and therefore will examine the applicability of sections 33(1)(a) and (b) to the record at issue.

It should be noted at the outset that section 33(2)(a) provides that section 33(1) applies to a record that -�contains information that relates to the tactics, strategy or operations of the Defence Forces in or outside the State-�. I accept that section 33(2)(a) is applicable in this case so as to bring the record at issue within the ambit of section 33(1). However, it is not the case that a record that falls within the scope of section 33(2)(a) is exempt from release on that basis; it is still necessary to satisfy the harm test in section 33(1) of the Act (except in circumstances where sections 33(2)(b)(i) or (ii) apply, which is not the case here).

An FOI body seeking to rely on sections 33(1)(a) and/or (b) must identify the potential adverse effect on one of the matters specified in paragraph (a) and/or (b) of subsection (1) that might arise from disclosure of the record and, having identified that adverse effect, consider the reasonableness of any expectation that the adverse effect will occur. In respect of the latter element, the FOI body is not required to demonstrate that the adverse effect identified will definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable, in the sense that there are adequate grounds for them. This being said, this Office takes the view that that there must be adequate grounds for an FOI body-�s expectation of the adverse effect at the time the decision to refuse is made, and that the FOI body should show how access to the record could reasonably be expected to have the adverse effect expected.

In relation to section 33(1)(a), the FOI body must be able to demonstrate that the relevant harm -� harm to the security of the State -� could reasonably be expected to occur as a result of disclosure of the record concerned. Section 33(1)(b), meanwhile, requires the body to demonstrate that the relevant harm -� harm to the defence of the State -� could reasonably be expected to occur as a result of disclosure of the record concerned.

In its submissions, the Defence Forces stated that the relevant information redacted under section 33 was information relating to the location and security of keys within the Air Corps. It stated that the record outlined where these keys were kept, what door/ building they were used for, and who had access to the keys. The Defence Forces stated that this information related to its specific tactics and operations and that therefore it should not be released into the public domain. It stated that, if the information was released, the building in question could be subject to a break in which could lead to damage property and stolen goods.

It should be noted that the Defence Forces did not tie its arguments under section 33 to record 12 specifically. As mentioned at the outset of this decision, it initially argued that record 1 had also been redacted under section 33, and stated in its submissions that the material in record 1 that had been redacted under that provision of the act was information regarding the location and security of keys. Subsequently, the Defence Forces clarified that no redactions to record 1 had in fact been made under that provision of the FOI Act. However, as the information redacted from record 12 also relates to the location and security of keys, I consider that the arguments for exemption under section 33 that the Defence Forces initially made in relation to record 1 are equally applicable to record 12.

I have considered the arguments of the Defence Forces in this regard and, while I accept that the information regarding the location and security of keys for certain Air Corps buildings relates to the tactics and operations of the Defence Forces (so as to bring it within the scope of section 33(2)(a) of the FOI Act), I am less convinced that the information can be said to satisfy the harm test in either section 33(1)(a) or (b). It would be, in my view, a considerable leap to suggest that the potential negative effects the Defence Forces have identified (damage to property and stolen goods) could adversely affect the security of the State. Similarly, I cannot see how potential damage to property or stolen goods might reasonably be expected to adversely impact the defence of the State.  Section 22(12)(b) of the FOI Act provides that the refusal of access to records is presumed not to have been justified unless the FOI body shows to the satisfaction of this Office that it was justified. I do not consider that the Defence Forces have shown how the release of the records could reasonably be expected to give rise to the harms identified in the either section 33(1)(a) or (b) of the FOI Act, and nor is it apparent to me as to how such harms might arise.

On the basis of the above analysis, I find that the relevant portions of record 12 withheld by the Defence Forces are not exempt from release under section 33(1) of the FOI Act.

Decision

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 justified in withholding from release the information it redacted from the records under section 37(1) of the FOI Act. However, I find that its decision to withhold parts of record 12 under section 33 of the FOI Act was not justified, and direct the release of that record in full.

Right of Appeal

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