Whether the Defence Forces was justified in refusing access to records relating to an internal investigation into a formal complaint made by the applicant in 2019 on the basis of section 35 of the FOI Act

14 February 2022

Background

In a request dated 24 September 2020, the applicant sought access to various emails and correspondence relating to an investigation of her formal complaint of bullying and harassment, as well as a copy of the final report.

On 23 October 2020, the Defence Forces informed the applicant that it was extending the period of time to consider her request beyond the initial four weeks provided for at section 13(1), under section 14(1)(b). I will discuss this in more detail below.

Following additional correspondence between the parties, the applicant sought an internal review on foot of a deemed refusal on 21 January 2021, as the Defence Forces had not made a decision on her request. Further correspondence passed between the parties and the Defence Forces refused her request in full on the basis of section 35(1)(a) of the FOI Act (information received in confidence) in an internal review decision dated 12 March 2021. On 19 March 2021, 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 between the parties as set out above, to the applicant’s application for review and to the submissions made by the FOI body in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Defence Forces identified 19 records relating to the applicant’s request. I will use its numbering for ease of reference.

Record 1 is the Investigating Officer’s (IO’s) final report into the applicant’s complaint. During the course of this review, the Defence Forces provided a copy of this report to the applicant. On that basis, I will not consider record 1 in this review.

Accordingly, this review is solely concerned with whether the Defence Forces was justified in its decision to refuse to grant access to records 2-19 on the basis of the FOI Act.

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Defence Forces to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Section 2 of the Act defines “record” as including “a copy or part” of any thing falling within the definition of a record. 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 FOI 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 neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Section 14

Section 14(1)(b) of the FOI Act provides for an extension of the time to consider an FOI request up to 4 weeks, in circumstances where the number of other FOI requests relating to the same records or corresponding information such that compliance with the time limit is not reasonably possible.

In its submissions to this Office, the Defence Forces confirmed that there were no other FOI requests received for the records sought by the applicant, or for corresponding information. The Defence Forces’ reasons for extending the time required to process the applicant’s request under section 14(1)(b) in this case essentially comes down to delays processing the request and in seeking legal advice due to staff unavailability or unfamiliarity with the relevant records.

It is important to note that section 14(1)(b) does not provide for an extension to the time to consider a request on the basis that the FOI body is experiencing staffing issues or because it is seeking legal advice on relevant matters.

Analysis and Findings

It seems to me that the records under review in this case fall into two general categories:

The applicant’s complaint and redress of wrongs application, and various records relating to the investigation of the complaint, including correspondence with third parties as part of the investigation (records 8-9, 11, 13-14 and 18-19),
Email correspondence referring to the applicant’s complaint and/or her redress of wrongs application, the assignment of her complaint to an investigator and queries as to the progress of the investigation (records 2-7, 10, 12, 15-18).

The Defence Forces refused to grant access to all of the records sought on the basis of section 35(1)(a) of the FOI Act. However, having carefully examined the records in question, it appears to me that section 37(1) is of more relevance to the first category of records. Accordingly, I will consider the applicability of this exemption to records 8-9, 11, 13-14 and 18-19 in the first instance.

Section 37 - Third party and joint personal information

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 solely relates to the requester. However, section 37(7) provides that 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 FOI Act defines "personal information" as information about an identifiable individual which meets one or more of a number of criteria, including information held by an FOI body on the understanding that it would be treated as confidential, information that relates to the employment or employment history of the individual, information contained in the personnel record of a member of staff of an FOI body, and/or where a name appears with other personal information in a record relating to an individual, information which would or would be likely to establish that the information related to that person. In other words, records relating to workplace complaints and investigations would be likely to contain information which would come under the definition of personal information in the FOI Act.

Section 37 is a mandatory exemption, and if applicable, must be considered by this Office, even where an FOI body has not relied on section 37 to refuse access to the records sought. It seems to me that the majority of the information in records 8-9, 11, 13-14 and 19 in full and record 18 in part relates to the employment or employment history of various individuals employed by the Defence Forces (including, but not limited to, the applicant), some of which may be held on their personnel files. It also seems to me in the circumstances that the release of this information would establish that the information related to various identifiable individuals.

Accordingly, I am satisfied that the information in the records concerned relates to the personal information of the applicant and/or various third parties. I am also satisfied that this information is inextricably linked. In other words, it would not be possible to redact the names of third parties and release the remaining information, as the remaining information would be misleading and/or it would be clear to anyone involved who the relevant individuals were. Therefore, I find that the release of the information at issue in these records would involve the disclosure of personal information relating to third party individuals and that section 37(1) applies. I should say that it is not relevant to my finding that the applicant may already be aware of the information concerned on the basis that records released under FOI are deemed to be released to the world at large.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case and I find that section 37(2) does not apply to the withheld information.

Section 37(5)

Having found that section 37(1) applies to the withheld information, I must also consider section 37(5). That section provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual(s) to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual(s) concerned.

I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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. Essentially, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v the Information Commissioner [2011] IESC 26 (also available on our website) in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 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.

The FOI 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, as referenced above. This is because the FOI Act places no constraints on the uses to which a record released under the Act may be put. I have had regard to the nature of the information in this case. I have also had regard to the fact that the Defence Forces has provided the applicant with a copy of the investigator’s report into her complaint during the course of the review. In my view, the release of this record strikes an appropriate balance between the competing interests at play in this matter.

In the circumstances, I find no relevant public interest in granting access to the information that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I find that section 37(5)(a) does not apply in this case. In conclusion, therefore, I find that the Department was justified in refusing to release records 9-10, 13-14 and 19 in full and record 18 in part under section 37(1) of the FOI Act.

Section 35 – information provided in confidence

I will now consider records 2-7, 10, 12 and 15-17 in full and page 1 of record 18, which the Defence Forces has refused to release on the basis of section 35(1)(a) of the FOI Act.

Section 35(1)(a) applies to a record containing information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a): the information was given to an FOI body in confidence; the information was given on the understanding that it would be treated by the FOI body as confidential; disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons; and it is important to the body that such further similar information should continue to be given to the body.

In its submissions to this Office, the Defence Forces referred to its internal guidelines in relation to investigations of the type concerned in this case. It said that the relevant paragraph of its Administrative Instruction A7, Chapter 1, states that “confidentiality, discretion and due regard for the right to privacy will be maintained by all concerned where a complaint is being dealt with at whatever level”. The Defence Forces stated that complaints by their nature can be very stressful for all concerned, including the complainant, the person complained about and witnesses. It further stated that, as per Instruction A7, “resolution can be more easily achieved when confidentiality, discretion and the individual’s right to privacy are maintained”. The Defence Forces also quoted Paragraph 150 of Instruction A7, which states that “personnel shall be protected from intimidation or victimisation for making a complaint or assisting in an investigation. Retaliation against a person for making a complaint or for coming forward as a witness will be treated as a disciplinary offence”. It stated that this was the case whether a complaint was upheld or not. 

Essentially, the Defence Forces’ argument appears to be that it owes a duty of confidence to the various staff members involved in the investigation and that section 35(1)(a) applies to all of the records concerned.

It seems to me that the Defence Forces has attempted to apply a class-based exemption to all of the records in this case. I accept that the Defence Forces has a policy in place concerning confidentiality in relation to such matters. However, I do not accept that this policy extends to what are essentially administrative records. Records 2-7, 10, 12 and 15-17 in full comprise internal emails assigning an Investigating Officer, various queries re the extent of the investigation and as to its progress. Page 1 of record 18 is a cover letter from the Military Police concerning its investigation into one of the matters complained about by the applicant. From a careful examination of the relevant records, I am satisfied that they contain nothing of substance about the applicant’s complaints or the subsequent investigation.

Based on the context of the creation and the content of records 2-7, 10, 12, 15-17 in full and 18 in part, I do not accept that they contain information submitted in confidence in relation to an Administrative Instruction A7 Chapter 1 investigation.

Therefore, I find that section 35(1)(a) does not apply to records 2-7, 10, 12 and 15-17 in full and page 1 of record 18 and I direct their release to the applicant.

As I have found section 35(1)(a) not to apply, I do not need to consider the public interest test at section 35(3) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Defence Forces’ decision to refuse access to the records sought. I affirm its refusal to grant access to records 8-9, 11, 13-14 and 19 in full and record 18 in part on the basis of section 37 of the FOI Act. I find that, on balance, the public interest does not favour their release. I annul the Defence Forces’ decision to refuse access to the remaining records on the basis of section 35 of the FOI Act and I direct the release of these records as set out above to the applicant.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Defence Forces to my decision within five working days of the expiration of the 4-week period for the bringing of an appeal to the High Court from this decision, as provided for at section 24(4) 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 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.

Deirdre McGoldrick
Senior Investigator