Whether the Defence Forces has provided the applicant with an adequate statement of reasons under section 10 of the FOI Act in relation to his unsuccessful application for enlistment

3 December 2020

Background

On 19 March 2020, the applicant sought a statement of reasons as to why he was unsuccessful in his application for recruitment to the Defence Forces. In its decision of 4 June 2020, the Defence Forces stated that the applicant was not successful as he did not pass the required security clearance. It also released a record which indicated that he failed to meet the requirements for enlistment due to the offences reported through the security checking process.

The applicant sought an internal review of that decision on 8 June 2020 on the ground that the statement did not explain why he had failed the security clearance. In its internal review decision of 1 July 2020, the Defence Forces stated that the security clearance stage falls under section 35(1)(a) of the FOI Act. That section is concerned with the protection of information given to public bodies in confidence. On 17 August 2020 the applicant sought a review by this Office of the decision of the Defence Forces.

During the course of the review, the Defence Forces stated that it wished to rely on section 33(3)(a) in support of its refusal to provide any additional information relating to the basis on which the applicant failed security clearance. That section is concerned with the protection of information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State. Ms Whelan of this Office notified the applicant that the Defence Forces was relying on section 33(3)(a) and invited him to make any further submissions he wished. No further submissions have been received to date.

I have now decided to bring this review to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the applicant and the Defence Forces and to the correspondence between this Office and both the applicant and the Defence Forces on the matter.

Scope of the Review

This review is concerned solely with the question of whether the Defence Forces is required, under section 10 of the Act, to provide a more detailed statement of reasons as to why the applicant was unsuccessful in his recruitment application.

Preliminary Matters

While I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is quite limited.

I should also explain that the appropriateness, or otherwise, of the substantive decision taken by the Defence Forces in respect of the application for recruitment is not a matter for examination by this Office. Our role is limited to determining whether the Defence Forces has complied with the requirements of the FOI Act.

Analysis and Findings

Section 10 of the FOI Act provides that a person who is affected by an act of a public body and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act and of any findings on any material issues of fact made for the purposes of the act. However, this is not an absolute right. Under section 10(2)(a), the public body is not required to give information contained in a record that would fall to be refused as an exempt record. In other words, if the public body is entitled to refuse access to a record on the ground that it is exempt from release, it does not have to include the information contained in that record in a statement of reasons.

In essence, the position of the Defence Forces is that it is not required to provide the applicant with a more detailed explanation as to why he did not pass the required security clearance stage of the recruitment process as to do so would require the disclosure of information contained in a record that is exempt from release under section 33(3)(a). That section provides for the mandatory refusal of a request if the record concerned contains information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State.

This exemption is what is commonly referred to as a class based exemption. If the information at issue is of a type or class that is captured by the information described in the exemption, then it is exempt. The public body is not required to identify a potential harm that might arise from disclosure of the record. In addition, there is no public interest override which would allow for the consideration of whether the public interest would be served by release.

In his application for review, the applicant stated that he had received Garda vetting clearance in December 2019 and could not see why he would have failed the security clearance. He stated his belief that some mistake had been made in relation to his application. While I have some sympathy with the applicant's predicament, the remit of this Office in such cases is quite limited. If the Defence Forces can satisfy this Office that to provide the applicant with reasons as to why he had not passed the security clearance stage of the recruitment process would require the giving to him of information contained in a record which is exempt under section 33(3)(a) of the FOI Act, then I must find that it is not required to do so.

All that is required in such cases is for the Defence Forces to show that the records contain information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State. This Office generally accepts that information obtained by the Defence Forces as part of its security clearance measures when considering applications for recruitment can reasonably be described as information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State.

The Defence Forces’ position is that the information gathered is assessed from a security perspective in respect of each potential new entrant. In its submissions to this Office, the Defence Forces provided details of the records it holds relating to the applicant, which includes records containing information obtained in connection with the security checking. 

In this case, the Defence Forces informed the applicant that he was not successful in his application for recruitment to the Defence Forces as he did not pass the required security clearance and it provided a copy of a record which indicated that he failed to meet the requirements for enlistment due to the offences reported through the security checking process.

I am satisfied that if the Defence Forces was to provide a more detailed explanation as to why the applicant did not pass the required security clearance, it would have to disclose information that was reported through the security checking process and that such information was obtained or prepared for the purpose of intelligence in respect of the security of the State and is exempt from release under section 33(3)(a) of the FOI Act. 

I therefore find that the statement of reasons provided by the Defence Forces to the applicant meets the requirements of section 10 of the FOI Act and that it is not required to provide the fuller statement of reasons sought.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Defence Forces that it is not required, by virtue of section 10(2)(a), to provide a more detailed statement of reasons as to why the applicant was unsuccessful in his application for recruitment to the Defence Forces.

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 four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator