Whether the Defence Forces was justified in refusing access to certain records relating to a Military Police investigation, on the ground that the records do not exist under section 15(1)(a) or are exempt from release under sections 31, 32, 33 and 37 of the FOI Act

19 April 2018

Background

On 11 February 2017, the applicant made an FOI request to the Defence Forces for a number of records, including his medical records and records relating to a Military Police investigation. The Defence Forces issued its decision in four letters, on 21 April 2017, 18 May 2017, 25 May 2017 and 14 July 2017. It granted access to some information and refused access to the remaining information, under sections 15(1)(a), 31(1)(a), 32(1)(a)(i), 33 and 37 of the FOI Act. The applicant applied for an internal review decision regarding certain information on 26 April 2017 and 8 June 2017. The Defence Forces issued its internal review decision in three letters, on 23 May 2017, 3 July 2017 and 7 July 2017. It granted access to further information and affirmed its decision on the remaining information. In correspondence dated 14 and 25 July 2017, the applicant applied to this Office for a review of the Defence Forces' decision.

In reviewing this case, I have had regard to the correspondence between the applicant and the Defence Forces as outlined above and to the correspondence between this Office and both parties, as well as to the contents of the withheld records that were provided to this Office by the Defence Forces for the purposes of this review.

Scope of the Review

During the review process, the Defence Forces released Records 16(a)(iv) and (v) to the applicant. Furthermore, it released part of a particular Standing Order to the applicant, on the basis that his request for "Record 19" was a request for the information contained in that part.

Given the volume of correspondence in this case, the Investigator contacted the applicant twice to clarify the scope of the review. The applicant's reply solely concerned the existence of an additional record, which I address under section 15(1)(a) below.

Accordingly, the scope of this review is as follows: Record 1 (referred to in the decision letter of 14 July 2017); Record 6 (referred to in the decision letter of 21 April 2017); Records 13, 14, 16(a)(i), (ii), (iii) and 20 (referred to in the decision letter of 18 May 2017). It also concerns the alleged existence of a letter from a named doctor dated March 2017. The question for this review is whether the Defence Forces is justified in refusing access to this information, under sections 15(1)(a), 31(1)(a), 32(1)(a)(i), 33 or 37 of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points. First, it is important note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Defence Forces to satisfy me that its decision is justified.

Secondly, with certain limited exceptions (e.g. sections 37(2), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Finally, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

The applicant seeks access to a letter from a named doctor dated March 2017, which he says is on his medical file. During the review, the Investigator drew his attention to the fact that the records showed the existence of a letter from the named doctor dated March 2016, but not March 2017. The applicant maintains that a letter from a named doctor dated March 2017 was shown to him in or on 18 January 2017 and was held on his medical file in a named hospital and that he has a witness to the letter's existence.

Where the applicant claims that further records exist, it is appropriate to consider section 15(1)(a) of the FOI Act. Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found.

During the review, the Investigator asked the Defence Forces about the existence of the letter concerned and searches undertaken for that letter. In reply, the Defence Forces states that it conducted the following searches. It reviewed both the applicant's electronic health record and hard-copy central medical record. It conducted a manual search by service number and name. It also searched other medical files beginning with the first letter of the applicant's surname, in case the requested record had been wrongly filed. It carried out searches of offices associated with collecting, delivering and filing of medical files. However, it located no correspondence from the named doctor dated March 2017.

I accept the Defence Forces' position and do not find a basis on which to dispute it. This Office is not required to search for records. Its understanding of its role in this type of case was approved by the Courts.

I find that the Defence Forces is justified in refusing access to further records on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken, under section 15(1)(a) of the FOI Act.

Section 31 - Parliamentary, court and certain other matters

The Defence Forces claims section 31(1)(a) over Record 20. Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
• 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).

This Office has considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of confidential communications regarding the giving or receiving of legal advice.  In Case Number 020281, the former Commissioner referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice.  In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

I adopt this approach and take the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. I have reviewed Record 20 and the Defence Forces' submissions. I accept that Record 20 contains confidential communications made between the Defence Forces and its professional legal advisers, which form part of a continuum of seeking and receiving legal advice.

I find that the Defence Forces is justified in refusing access to Record 20 under section 31(1)(a) of the FOI Act.

Section 32(1)(a)(i) - Law enforcement and public safety

The Defence Forces claims section 32(1)(a)(i) over Record 13 and Records 16(a)(i), (ii) and (iii). Section 32(1)(a)(i) is relevant where access to the record could reasonably be expected to prejudice or impair 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 the matters above. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified.

In submissions to this Office, the applicant says that as far as he is aware, all investigations are concluded and reports have been provided. The Investigator therefore sought clarification from the Defence Forces on this point. The Defence Forces advised that there was a first investigation on one matter, which concluded. However, there is a second Military Police investigation on another matter, which remains open and active. The records under review relate to this investigation. Furthermore, the Defence Forces identified the relevant statutory provisions which govern the offences being investigated. I therefore accept that the investigation relates to certain offences.

Record 13

Record 13 is an account of meetings with members of the Defence Forces in connection with the investigation concerned. The Defence Forces refers to particular information which this record reveals and submits that releasing it at this time could reasonably be expected to prejudice the further investigation of the offence concerned.

I am limited as to what I can say about the content of this record. In general terms, it discloses details of certain allegations, individual members of the Defence Forces questioned and those members' responses to questions asked. Having regard to the sensitive subject-matter under investigation and the content of the record, I am satisfied that members of the Defence Forces would have participated in the investigation on an understanding of confidentiality and that this confidentiality underpins the effectiveness of the investigation. Moreover, in circumstances where the investigation is ongoing, I believe that arguments in favour of releasing this record are weak. I consider that releasing this record at this point could reasonably be expected to prejudice the investigation of the alleged offences.

Records 16(a)(i), (ii) and (iii)

Record 16(a)(i) is a chronology of events relating to the investigation, recorded by a member of the Defence Forces. Records 16(a)(ii) and (iii) are reports into the investigation. The Defence Forces says that releasing Record 16(a)(i) at this point in time could reasonably be expected to prejudice any further line of investigation deemed necessary by the prosecutor. It says that releasing Records 16(a)(ii) and (iii) could reasonably be expected to prejudice any further investigation of the alleged offence deemed necessary and refers to certain information which these records disclose.

These records contain accounts of events and steps taken as part of the investigation, including questioning of members of the Defence Forces about the events concerned. Once again, I am satisfied from their content that the individuals involved would have participated on an understanding of confidentiality. I am also satisfied that releasing the accounts at this point in time could reasonably be expected to prejudice the ongoing investigation of the alleged offences.

Finding

I find that section 32(1)(a)(i) applies to Records 13, 16(1)(i), (ii) and (iii). The public interest test in section 32(3) is limited to certain circumstances specified in paragraphs (a)(i) or (a)(ii). I am satisfied that none of these circumstances apply. For completeness, I should mention that in his internal review request, the applicant says that if Record 16 is being used as evidence, he is entitled to a copy in order to defend himself. As noted above, I may only consider the applicant's reasons for his FOI request insofar as they might be construed as a public interest argument, which does not arise in my consideration of section 32(1)(a)(i).

I find that the Defence Forces is justified in refusing access to these records under section 32(1)(a)(i) of the FOI Act.

Section 33 - Security, defence and international relations

The Defence Forces claims section 33 over Record 6. Section 33(1) provides that an FOI body may refuse to grant an FOI request where access to the record could reasonably be expected to affect adversely one of the following matters: the security of the State; the defence of the State; matters relating to Northern Ireland; and the international relations of the State. In addition, subsection (2) provides a non-exhaustive list of categories that may qualify for exemption. With the exception of records falling within section 33(2)(b)(i) or (ii), the mere fact that a record falls within a category of records described in subsection (2) is not sufficient to render the record exempt pursuant to subsection (1); it must also meet the harm test in subsection (1). An FOI body relying on section 33(1) must identify the potential adverse effect and then consider the reasonableness of any expectation that the adverse effect will occur. It should show how access to the record could reasonably be expected to have the adverse effect expected.

Record 6 consists of standing orders for a military camp. In its original decision, the Defence Forces refers to section 33(1) and notes that subsection (2)(a) applies to a record that relates to the tactics, strategy or operation of the Defence Forces in or outside the State. It submits that releasing this information would compromise the security of the Defence Forces' installations, camps, base and training facilities. However, it does not say how this harm could reasonably be expected to occur. In its internal review decision, the Defence Forces says that releasing this record would amount to release to the world at large and accordingly it affirms the original decision. In submissions to this Office, the Defence Forces states that Record 6 is regarded to have the same protection as another set of standing orders, which it says are published for the internal access and information of members of the military. The Defence Forces makes no further submissions on Record 6.

The Defence Forces has not satisfied me that releasing this record could reasonably be expected to affect adversely the security or defence of the State. The fact that release under FOI amounts to release to the world at large does not of itself demonstrate the relevant harm. I do not believe that I would be revealing exempt information in violation of section 25(3) of the FOI Act by noting that Record 6 covers many diverse subjects. It states that its contents deal with all matters of internal administration and discipline and not with operational and security matters. In any event, the Defence Forces has not pointed to content within this record,  the disclosure of which could reasonably be expected to compromise the security of its installations, camps, base and training facilities or otherwise harm the security or defence of the State. It has failed to show a link between the particular content of this record and the alleged harm under section 33. In the circumstances, I have no basis on which to find that section 33 applies.

I find that the Defence Forces is not justified in refusing access to Record 6 under section 33 of the FOI Act.

Section 37 - Personal Information

Section 37(1)

The Defence Forces claims section 37 over the withheld parts of Records 1 and 14. Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential.  The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. The withheld parts of Records 1 and 14 are mobile telephone number of members of the Defence Forces. I accept that these constitute personal information and are exempt under section 37(1). This finding is subject to sections 37(2) and (5), which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. I am then required to consider section 37(5) as it applies to the information.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

On balance, I do not consider that the public interest that the request should be granted outweighs the Constitutional right to privacy of the individuals to whom the information concerned relates. I find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the record would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

I find that the Defence Forces is justified in refusing access to the withheld information in Records 1 and 14, under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Defence Forces' decision. I affirm its decision on certain records (as outlined above), under sections 15(1)(a), 31(1)(a), 32 and 37 of the FOI Act. I annul its decision on Record 6 and direct its release.

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 applicant 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.

Elizabeth Dolan
Senior Investigator