Whether the Department of Defence was justified in refusing access to records containing specified information and relating to investigations by the Ombudsman for the Defence Forces under section 15(1)(c) of the FOI Act 

2 August 2018 

Background

The background to this case is a previous review by the Information Commissioner, Case 160411 (Mr X & the Department of Defence), available onwww.oic.ie. In 2016, the applicant sought access to five items of information about complaints to the Ombudsman for the Defence Forces (ODF) in the period 1 January 2000 to 17 June 2016. The Department subsequently clarified that as the ODF was established on 1 December 2005, the time period for the applicant's FOI request would begin on that date. It granted access to two items and refused access to the remaining three items under section 15(1)(c) of the FOI Act. 

Essentially, the applicant sought detailed breakdowns of complaints upheld by the ODF, in relation to the ODF's recommendations and their implementation. Section 15(1)(c) provides that an FOI body may refuse to grant a request if granting it would cause a substantial and unreasonable interference or disruption of its work. However, section 15(4) of the FOI Act provides that FOI bodies are not entitled to rely on section 15(1)(c) unless they have assisted or offered to assist the requester to amend the request so that it no longer falls within section 15(1)(c). In Case 160411, I decided that the Department had not properly complied with section 15(4) of the FOI Act. I directed it to undertake a fresh consideration of the applicant's FOI request and if the applicant required it following the assistance under section 15(4), to take a new decision on the records. 

Following further engagement with the applicant, the Department issued a new decision on 14 July 2017. It granted access to certain information and refused access to the remaining information under sections 15(1)(c) and 37 of the FOI Act. On 24 August 2017 the applicant applied for an internal review, saying "while I was provided with a substantial amount of paperwork on 14 July, nothing in this provides me with the information I need". The Department issued its internal review decision on 11 October 2017, in which it affirmed its decision of 14 July 2017. On 3 November 2017 the applicant applied to this Office for a review of the Department's decision. 

In reviewing this case, I have had regard to the correspondence between the applicant and the Department 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 Department for the purposes of this review. 

I note that during the review, the Investigator made considerable efforts to facilitate a settlement between the parties. However, this did not prove possible. I therefore believe that it is appropriate to conclude this review by way of a binding decision.

Scope of the Review

In its decision of 14 July 2017, the Department provided the applicant with updated figures for items (1) and (2) of his FOI request. In respect of items (3) - (5), it released "Quarterly Tables of Ministerial Decisions entitled 'ODF Final Reports/Ministerial determinations - matters outstanding' for the period July 2013 to end December 2016". It withheld certain information within these reports under section 37 of the FOI Act. It claimed section 15(1)(c) over the remaining information. In its internal review decision of 11 October 2017, the Department released a sample summary record for an individual case, with redactions under section 37. 

During the review process, the Investigator informed the applicant that, in her view, the information which the Department had redacted in the records released to him was personal information of individuals which would normally be exempt under section 37 of the FOI Act. She asked whether he sought access to such information. I should make clear that the applicant replied that he had never sought personal information of any sort. He did refer to cases relating to two particular members of the Defence Forces; however, I have no evidence of their consent to release their personal information. The redacted information comprises the names of, and reference numbers assigned to, certain members of the Defence Forces and other pieces of identifying information about individuals other than the applicant. I consider that this constitutes personal information within the definition of personal information in section 2 of the FOI Act. As the applicant says that he does not seek access to personal information, I will proceed on the basis that this information falls outside the scope of the review. For the avoidance of doubt, I must say that had I had to consider it, I would have had no option but to find it to be exempt under section 37 of the FOI Act. 

I should also note that in its internal review decision, the Department invoked section 31(1)(a) (legal professional privilege) over information in ODF cases which would relate to legal advice. However, it has not retrieved or scheduled any such records. As noted in Case 160411, I do not consider it appropriate for the Department to claim exemptions in addition to section 15(1)(c) where it has not retrieved the relevant records for consideration. I therefore do not propose to consider this exemption further.

Finally, following questions from this Office, the Department released small pieces of information to the applicant, which now fall outside the scope of this review.

Accordingly, the question for me is whether the Department is justified in refusing access to the remaining information which the applicant seeks, under section 15(1)(c) 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 Department to satisfy me that its decision is justified. 

Secondly, 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) - Refusal on administrative grounds 

Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request if granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference or disruption of the work (including disruption of work in a particular functional area) of the FOI body. 

As noted above, section 15(4) of the FOI Act provides that FOI bodies are not entitled to rely on section 15(1)(c) unless they have assisted or offered to assist the requester to amend the request so that it no longer falls within section 15(1)(c). 

After this Office's decision in Case 160411 and before its decision of 14 July 2017, the Department contacted the applicant, met with him and offered to provide him with a sample summary case and quarterly reports. After its decision of 14 July 2017 and before its internal review decision, it examined its own case management system for ODF cases and amended it to facilitate the extraction of summary records for individual cases. As noted above, it provided the applicant with a sample summary case and quarterly reports. It confirmed that it would be possible to extract summary cases dating from January 2013. It advised the applicant that extracting these records would take approximately one hour per record. 

As I noted in Case 160411, the FOI Act is silent on the precise nature or level of assistance to be offered under section 15(4). The level or nature of the assistance to be provided will depend on the particular facts of the case and will often depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances. Section 15(1)(c) is an explicit acknowledgment of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on often limited resources. However, section 15(4) envisages that the FOI body and the requester should, between them, attempt to amend the request. Having regard to the steps which the FOI body has taken since my last decision, I consider that the Department has now complied with section 15(4) of the FOI Act. 

During the review process, the Investigator explored the possibility of the Department providing the applicant with six summary records, in an effort to achieve a settlement between the parties. However, it finally transpired that as the applicant specifically sought summaries of cases which did not have the Ombudsman's recommendations actioned or implemented, this would involve examining the files on an individual basis. 

In submissions to this Office, the applicant says that he is trying to establish the effectiveness of the ODF. Anecdotal information suggests to him that recommendations are not actioned or are frustrated to the point where complainants retire or leave the Defence Forces. He says that there are approximately 180 cases over the period and that officials of the Department could retrieve these records in a few days if assigned to do so. He believes that the Department is deliberately frustrating his requests. I can only take into account the applicant's motive insofar as it may be relevant to a public interest test in an FOI provision, which does not arise here. 

Having regard to the Department's submissions in this case and Case 160411, I do not accept the contention that the records could be retrieved after a few days work. In Case 160411, the Department advised that the relevant records are held in various filing systems and that there is no single spread-sheet or case-tracking system which can provide the information in a timely fashion. As noted, it has since amended its system to facilitate the extraction of summary records. However, it has also explained that extracting summary records would take approximately one hour per record and that there are approximately 184 cases. A difficulty in extracting the summaries stems from the fact that particular details of the complainants would have to be redacted in order that the circumstances of the cases would not identify the individual Defence Forces personnel. Care would have to be taken to ensure that the resulting redacted summaries were not misleading. In addition, the Department explained that the extraction of summaries necessitated transferring data from each file in a database to an excel spreadsheet. The Department has advised this Office that the relevant branch concerned is staffed by ten people, two of whom deal with FOI requests. 

The applicant says that the information which he seeks should surely be retrievable in any good information management system. Yet the fact is that he seeks certain information which is not organised in a way that allows it to be retrieved readily. I do understand his frustration with the position. However, while I acknowledge his work in pursuing the matter, I am confined to considering the matter within the provisions of the FOI Act. This Office does not have a role in reviewing how FOI bodies perform their functions generally.

In the circumstances, I accept that granting the request would require the retrieval and examination of records of such a kind as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the Department. I therefore find that the Department is justified in refusing access to the information under section 15(1)(c) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Department's decision under section 15(1)(c) of the FOI Act. 

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator