Whether the Defence Forces were justified in refusing access to certain records relating to the applicant

13 December 2022

Background

In a request dated 15 November 2021, the applicant sought access to a number of records relating to his service in the Defence Forces. Subsequently, in the course of correspondence exchanged between the parties, the applicant indicated that certain records (relating to email correspondence sent or received by named members of the Defence Forces) could be excluded from the scope of his request. This left five items to be considered by the Defence Forces for release, as follows:

1. a redress file relating to an incident when the applicant was removed from a Driver Testers Instructor Course in June 2021, to include all attachments, statements and notes

2. the complete redress file in relation to a complaint made by the applicant

3. a report by a third named Defence Forces Officer dated 10 of February 21 relating to an incident in the applicant-�s barracks

4. a Military Police Final Investigation Report pertaining to the applicant and relating to the alleged assault of an officer in December 2017

5. the applicant-�s leave record for 2021.

In a decision dated 21 January 2022, the Defence Forces part-granted the request, releasing the applicant-�s leave record for 2021, and withholding the remaining records under sections 32(1)(a), 33(1)(a) and 33(2)(a) of the FOI Act. On 2 February 2022, the applicant sought an internal review of that decision. In its internal review decision dated 8 March 2022, the Defence Forces varied its original decision, by granting access in full to record 1 and partial access to record 2 (with certain redactions made to the record pursuant to section 37(1) of the FOI Act). It affirmed the decision to withhold records 3 and 4, citing section 32(1)(a) and section 33(1)(a). On 28 April 2022, the applicant applied to this Office for a review of the Defence Forces-� decision.

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 correspondence exchanged by the parties to date, to the applicant-�s comments in his application for review 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.

Scope of Review

During the course of the review, the applicant indicated that record 3, relating to an incident on 10 February 2021, could be removed from the scope of the review.  Furthermore, in the course of carrying out this review, the Investigator formed the view that, although the Defence Forces had not sought to exempt the record 4 of the applicant-�s request from release under section 37(1), it was appropriate to examine the applicability of that provision of the FOI Act to that record. We wrote to the applicant to put him on notice of our intention to examine the potential applicability of section 37(1) to record 4, and to offer him the opportunity to make any additional submissions that he wished on the matter. The applicant reverted to indicate that he had no objection to the names of individuals being redacted from record 4 under section 37(1). However, as the Defence Forces did not specifically rely on section 37(1), and did not make any redactions pursuant to this provision of the FOI Act, for reasons outlined below I consider it necessary to examine the applicability of section 37(1) to record 4 as a whole.

Accordingly, this review is concerned solely with whether the Defence Forces was justified in redacting certain information, under section 37(1) of the FOI Act, from record 2 and in refusing access, under section 32(1)(a) to record 4. The review will also examine the applicability of section 37(1) to record 4.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments.

First, section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.

Secondly, it is important to note that a review by this Office is considered to be -�de novo-�, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Section 37 of the Act provides for the mandatory exemption of third party personal information. Accordingly, in light of the -�de novo-� nature of our reviews, I consider it appropriate to consider the applicability of section 37 to record 4, notwithstanding the fact that the provision was not relied upon by the Defence Forces as a ground for withholding the record.

Analysis and Findings

Section 37

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

Section 2 of the 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.

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 ...".

In its submissions regarding section 37(1), the Defence Forces said it had relied on section 37(1) to redact army numbers of its members as well as the mobile phone number of individuals. The Defence Forces argued that this information was personal to the relevant individuals.

I have examined record 2 and, in respect of the mobile number of an individual, I accept that this is personal information for the purposes of section 2 of the Act. However, in respect of the army numbers of members of the Defence Forces that have been redacted from the record, I consider that this information relates to the office or position that those individuals hold in a public body, and as such fall within the exception to the definition of personal information contained in Paragraph (I) of section 2. As such, this is not personal information for the purposes of the Act and is not exempt from release under section 37(1).

I wish to distinguish this finding in relation to the army numbers in the records from a finding made in a recent, similar case before this Office (under reference number OIC- 113885-Z8X7X1). In that case, which also involved the Defence Forces, I found that the army numbers that appeared in the records did not fall within the exclusion from the definition of personal information. However, that finding was made on the basis that the army numbers were housed entirely in a document created solely for the purpose of the investigation of a complaint about alleged wrongdoing. A distinction can be drawn between the facts of the above previous case and the facts before me in this case. In this case, the army numbers in the records appear in the context of a report into an application for -�Redress of Wrongs-�, which would appear to be a standard procedure within the Defence Forces. The complaint in this case (the application for Redress of Wrongs), although it seeks to have certain performance-related penalties that were applied to the complainant removed, does not relate to an allegation of improper or inappropriate conduct in the workplace, which was at issue in case 113885. As such, in the case before me I find that the redacted army numbers, as they comprise information relating to the relevant staff members-� positions in the Defence Forces, accordingly fall within the exclusion from the definition of personal information in Paragraph (I) of section 2 of the FOI Act.

In relation to the mobile number of an individual, which I have identified as constituting personal information, the matter does not end there as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. 

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 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.

In relation to the issue of the public interest, it is also 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 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 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.

In its submissions, the Defence Forces argued that any public interest in releasing the mobile number was outweighed by the fact that the number was personal to the individual in question, stating that if it was released then its owner could be identified and contacted directly. The Defence Forces stated that it had a duty of care to withhold the personal information of individuals other than the applicant.

The mobile phone number that I have identified in the records as falling within the scope of section 37(1) of the Act is information 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 individuals. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Department was justified in refusing access, under section 37(1) of the FOI Act, to the mobile number that I have identified as comprising personal information. However, I find that it was not justified under section 37(1) in redacting the army numbers of individual members of staff where they appear in record 2.

In relation to record 4, I have decided that it is appropriate to examine the extent to which the record might be exempt under section 37(1) because, upon an examination of the record, it would appear to contain the personal information of individuals other than the applicant. In particular, the record contains a number of witness statements in relation to certain alleged actions of the applicant. I consider that each of these statements relate to two individuals, namely the applicant (whose alleged actions are being described) and the individual giving the statement (with each statement describing the whereabouts and version of events of the relevant individual).

I consider that the information relating to the applicant in these statements is inextricably linked to the personal information of the party making the statement. It is therefore joint personal information for the purposes of section 37(7) of the FOI Act. Section 37(7) provides that (subject to the provisions of subsections 2, 5 and 8 of section 37),  an FOI request will be refused if, in addition to involving the disclosure of personal information relating to the requester, granting it would also involve the disclosure of personal information relating to other individuals.

I consider that none of the conditions in section 37(2) to which section 37(7) is subject apply. In addition, I do not find that there are any compelling public interest factors which would require me to disapply section 37(7) pursuant to section 37(5)(a) of the FOI Act. I am similarly satisfied that section 37(5)(b) does not apply in respect of the information at issue.

Moreover, I am also satisfied that the personal information relating to other individuals in the records does not fall within the exclusion from the definition of personal information contained in Paragraph (I) of section 2 of the FOI Act. The information relating to those individuals does not seem to me to relate to the office or position etc held by those individuals or the terms upon and subject to which such office or position was held. In addition it does not seem to me to constitute information that was written or recorded in by the individuals in the course of and for the purpose of the performance of their official functions, but rather takes the form of a witness statement in the context of an investigation into alleged wrongdoing.

On the basis of the above analysis I find that that section 37(7) applies in respect of record 4 in its entirety, with one exception.  That exception relates to the Military Police Statement Form at page 21 of the record.  I find that the personal information on this page of the record relates solely to the applicant, and as such is not subject to section 37(1) of the FOI Act. For the avoidance of doubt, where identifying information relating to military police officers appears on this page, I consider that it does so in the context of those officers carrying out their official functions, and so falls within the exclusion from the definition of personal information contained in Paragraph I of section 2 of the FOI Act.

Page 21 aside, I find that record 4 in its entirety is exempt from release under section 37(7) of the FOI Act. Below, I examine the extent to which section 32(1)(a) might apply to the last page of the record.

Section 32(1)(a)

In its submissions to this Office, the Defence Forces specified that it was relying on subsections (i) and (ii) of section 32(1)(a) as grounds to withhold record 4. As I have found that the record in its entirety, apart from page 21, is exempt from release under section 37(7) of the FOI Act, I only need consider whether section 32(1)(a) applies to that page.

Subsections (i) and (ii) of section 32(1)(a) provide that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to prejudice or impair:

1. the prevention, detection or investigation of offences, the apprehension of prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,
2. the enforcement of, compliance with or administration of any law.

In its submissions, the Defence Forces argued that sections 32(1)(a)(i) and (ii) applied to record 4 on the basis that an ongoing investigation was in existence. It argued that if records were released prematurely it could hamper the investigation. The Defence Forces stated that it had been informed by the relevant Brigade headquarters that neither of the relevant parties to the complaint had been paraded and given the outcome of this investigation. The Defence Forces stated that the investigation remained ongoing until both parties were paraded and given the final outcome of the investigation. The Defence Forces argued that they were therefore unable to release the records until this had occurred.

In his application to this Office for a review, the applicant stated that nearly five years had elapsed since the alleged incident that underlay the complaint, and argued that the investigation was finished.

Where an FOI body seeks to rely 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. In doing this, the FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified.

It is important to note that there is a presumption in favour of disclosure. Section 22(12)(b) of the Act provides that a decision to refuse to grant access shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The FOI body carries the burden of demonstrating to the Commissioner that the record should not be released.

It should be noted that the submissions of the Defence Forces under section 32(1)(a, as outlined above, were intended to be applied to record 4 as a whole. However, I have already found that the record is exempt under section 37(7) of the Act, apart from page 21. Thus, while the submissions of the Defence Forces may have applied to record 4 as a whole, in circumstances where only one page of the record is at issue I find that they do not so apply. While I accept that the Defence Forces have identified a harm that they expect to result from the release of the record, it is not evident to me how the release of the specific page at issue -� a Military Police Statement Form the contents of which, in any case, the applicant is already aware -� could reasonably be expected to flow from such release.

Where an FOI body seeks to rely on section 32(1)(a), it is required to show how release of the particular record could reasonably be expected to result in the harm(s) identified. A mere assertion of an expectation of harm is not sufficient. The FOI body should specify what it is about the particular record or the particular information in the record, which, if released, is expected to cause the harm, envisaged, and it should explain how or why that harm is expected to occur, and its submissions should be sufficiently detailed to demonstrate that link. Even if it is accepted that release of the records could lead the applicant (and/or others) to deduce certain information, the FOI body must still show how this could be expected to result in the harm envisaged. In the case at hand, I do not consider that the Defence Forces have established a link between the release of page 21 of the record and its expectation that such release would hamper its investigation of the relevant complaint.

In addition, by the Defence Forces-� own account (which seems to me to be supported by the contents of the record) it would appear to be the case that the evidence-gathering and inquiry stage of the investigation is complete, with all that remains the parading of the parties to the complaint in order to be informed of the outcome. In these circumstances, it is not clear to me how the release of page 21 of record 4 could reasonably be expected to impair or prejudice the prevention, investigation or detection of an offence, or the apprehension or prosecution of an offender, for the purposes of section 32(1)(a)(i) of the FOI Act. It is equally unclear to me on the basis of the information before me how the release of that page of the record could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law, for the purposes of section 32(1)(a)(ii).

Accordingly, I find that page 21 of record 4 is not exempt from release under section 32(1)(a) of the 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 under section 37 of the FOI Act in withholding the mobile number of an individual from record 2. However, the army numbers of staff members that the Defence Forces redacted from the records are not, in my view, exempt from release under section 37(1) of the FOI Act, and I direct the release of that information.

In addition I find that record 4, apart from page 21, is exempt from release under section 37 of the FOI Act. I find that page 21 of that record is not exempt under a relevant provision of the FOI Act, and I direct the release of that page.

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