Whether the Defence Forces were justified in refusing access to a military police report under section 42(c)(ii)(II) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Peter Tyndall, Information Commissioner

Background

On 12 June 2015, the applicant sought access to a military police report relating to a redress of wrongs complaint submitted by him. The Defence Forces refused the request on the ground that the FOI Act does not apply to the record sought. On 21 July 2015, the applicant sought an internal review of the refusal. On 4 August 2015, the Defence Forces affirmed their original decision to refuse access. The applicant sought a review by this Office of that decision on 9 August 2015.

In conducting this review, I have had regard to the contents of the relevant record, to the submissions of the parties and to the key provisions of the relevant legislation.

Scope of the Review

The scope of this review is concerned solely with whether the Defence Forces were justified in refusing access to the record sought on the ground that the FOI Act does not apply to it.

Findings

The Defence Forces refused access to the record sought under Section 42(c)(ii)(II) of the FOI Act. That section provides that the Act does not apply to a record held by the Defence Forces relating to section 170 of the Defence Act 1954.

Section 170 of the Defence Act 1954 provides as follows:

"For the prompt suppression of all offences a provost marshal of commissioned rank may from time to time be appointed."

In a submission to my Office, the Defence Forces argued that the intended purport of section 42(c)(ii)(II) is to restrict the application of the Act in relation to Defence Force records held by the Provost Marshal appointed under section 170 of the Defence Act relating to his police function in respect of the suppression of offences. They stated that such offences relate to offences under military law as prescribed under the Defence Act. They argued that the record sought in this case is a Military Police investigation report

"initiated under the direction and authority of the Provost Marshal for the purposes of the investigation of offences under military law"

and as such falls within the scope of section 170 of the Defence Act.

The key issue in this case is whether the record sought relates to section 170 of the 1954 Act. While the Defence Forces argue that the intention of section 42(c)(ii)(II) was to exempt records relating to the suppression of military offences that are held by the provost marshal from the FOI Act, it seems to me that I must have regard to the plain and ordinary meaning of the wording of section 170. As David Dodd explains in Statutory Interpretation in Ireland (Tottel Publishing, 2008), which has been repeatedly cited by the Irish courts with approval:

"Starting from the point that the text of the enactment is the pre-eminent indicator of the legislature's intention, two principal rules follow: the ordinary (or literal) meaning rule and the plain meaning rule. The former rule provides that words and phrases should be given their ordinary and natural meaning. The latter rule provides that where that meaning results in a provision being entirely plain and unambiguous, then the interpreter's job is at an end, and effect must be given to that plain meaning."

While section 170 describes the purpose of appointing a provost marshal, it seems to me that, having regard to the plain and ordinary meaning of the language used, the purpose of the section itself is to provide the statutory authority for the appointment of a provost marshal. It follows, therefore, that any records relating to the appointment of a provost marshal are excluded from the FOI Act by virtue of section 42(c)(ii)(II). The argument of the Defence Forces is that records relating to the provost marshal's functions are also excluded as such records relate to section 170. I disagree.

In the case of E.H and the Information Commissioner (1999 No. 96 MCA ), the High Court considered the meaning of the term "relate to personal information" in the context of whether certain records could be deemed to relate to personal information about an identifiable individual. In that case, O'Neill J. stated as follows:

"In my view the test to be applied to determine whether or not a record "relates to" is that which is postulated by Mr. O'Donnell at paragraph (a) above namely "whether there is a sufficiently substantial link between the requester's personal information (as defined in the act) and the record in question"

While I fully accept that the term "relates to" was considered by the Court in the context of whether records relate to personal information, it nevertheless seems to me that the judgment outlines an approach to the interpretation of the term that I can usefully adopt in this case. Accordingly, in determining whether a record can be described as "relating to" section 170 of the Defence Act 1954, I consider it appropriate to examine whether there is a sufficiently substantial link between the record and the purpose of the section. I do not accept that there is a sufficiently substantial link between records "initiated under the direction and authority of the Provost Marshal for the purposes of the investigation of offences under military law", as described by the Defence Forces, and section 170 of the Defence Act, given that the purpose of the section is simply to provide the statutory authority for the appointment of a provost marshal.

It seems to me that had the Oireachtas intended that records relating to the functions of the provost marshal would be excluded from the FOI Act, it would have been a straightforward matter to provide for their exclusion. In my view, it did not do so. Accordingly, I find that section 42(c)(ii)(II) does not operate to restrict the application of the FOI Act to the record at issue in this case. As the Defence Forces based their refusal of the request solely on the ground that the Act does not apply to the record, and having regard to the contents of the record, I believe it is appropriate to annul the decision and remit the matter for a fresh consideration of the applicant's request.

Decision

Having carried out a review under section 22(2) of the Act, I hereby annul the decision of the Defence Forces, and I direct them to conduct a fresh decision making process on the request.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner