Case number: OIC-53376-D1X2C5

Whether the Defence Forces was justified in refusing to provide the applicant with a more detailed statement of reasons as to why he was unsuccessful in his recruitment application and whether it was justified in its decision to refuse access in whole or in part, to additional relevant records under section 33 of the FOI Act

19 June 2020

Background

On 13 August 2018 the applicant sought from the Defence Forces information relating to why he was unsuccessful in his application for recruitment to the Defence Forces and all documents relating to his application. The Defence Forces treated the first part of his request as an application under section 10 of the FOI Act for a statement of reasons as to why he was unsuccessful. On 17 September 2018 it issued a decision in which it stated that the applicant was unsuccessful as he did not pass the required security clearance. It also granted access to a number of records relating to his application.

The applicant sought an internal review of the decision on 4 October 2018. In its internal review decision of 23 October 2018, the Defence Forces affirmed its original decision, relying on section 33(3) for refusing to disclose any additional information. That section provides, among other things, for the refusal of information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State. In a letter dated 11 March 2019 the applicant sought a review by this Office of the decision of the Defence Forces.

During the course of the review, the Defence Forces released a number of additional records to the applicant relating to his application for recruitment but continued to withhold four records in full and redacted information from four further records, all under section 33 of the FOI Act.

I have now completed my review of the decision of the Defence Forces. In conducting my review, I have had regard to the correspondence between the applicant and the Defence Forces described above and to the correspondence between this Office and both the applicant and the Defence Forces on the matter. I have also had regard to the contents of the records at issue.

Scope of the Review

This review is concerned with whether the Defence Forces was justified in refusing to provide the applicant with a more detailed statement of reasons as to why he was unsuccessful in his recruitment application and whether it was justified in its decision to refuse access in whole or in part, to additional relevant records under section 33 of the FOI Act.

Preliminary Matter

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 for my decision is quite limited.

Analysis and Findings

Statement of reasons

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 include in such a statement information that is contained in a record that is otherwise exempt. In other words, if the public body would be entitled to refuse access to a record on the ground that it is exempt from release, it does not have to include the exempt 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 of the State.

It is important to note that 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.

Ultimately, 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.

While I am constrained by section 25(3) in the explanation I can give, I can confirm that the Defence Forces has provided satisfactory evidence to this Office to show that providing the applicant with the more detailed statement of reasons sought would require the disclosure of information that was obtained or prepared for the purpose of intelligence in respect of the security of the State and that such information 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.

Withheld information

During the course of the review, the Defence Forces released a number of records to the applicant relating to his application for recruitment. It also released three reference forms and a mandatory security vetting questionnaire with redactions and declined to release four further records falling within the scope of the applicant’s request.

The Defence Forces redacted from record 5 the name of a Defence Forces staff member who witnessed the applicant’s mandatory security vetting questionnaire. It also redacted from records 6, 7 and 8 the name of a Defence Forces staff member who completed three reference forms as part of the applicant’s application for recruitment. The Defence Forces relied on section 33(2)(a) in refusing access to redacted information on the grounds that it comprises information that relates to the tactics, strategy or operations of the Defence Forces in or outside the State.

Subsection (2)(a) of section 33 does not, of itself, provide a basis for refusing a request. Rather, it contains details of the type of record that may be refused under subsection (1).  It provides that a record that contains information relating to the tactics, strategy or operations of the Defence Forces in or outside the State may be refused under subsection (1). Having regard to the nature of the arguments for refusing access to the information at issue, it is clear that the Defence Forces considers subsection (1)(a) to apply. That subsection provides for the refusal of a request if the body considers that access to the information sought could reasonably be expected to affect adversely the security of the State. A body wishing to rely on section 33(1)(a) for its refusal to grant access to a record must satisfy the Commissioner that harm to the security of the State could reasonably be expected to occur as a result of disclosure of the information concerned.

The Defence Forces argued that the staff member or members concerned work in a role that is considered sensitive and the information they obtain is used to prepare documents for the purpose of intelligence in respect of security or defence of the State. While that may well be the case, the Defence Forces failed to explain how the release of the names of those members might affect adversely the security of the State, nor am I aware of how such harm might arise. I find, therefore, that the Defence Forces was not justified in refusing access to the redacted information under section 33(1)(a).

As I have indicated above, the Defence Forces also refused access to four records in their entirety under section 33(3)(a) of the Act, which 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.

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 to the Defence Forces 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.

Having reviewed the four records at issue in this case, I am satisfied that they contain information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State and as such, that they are exempt under section 33(3)(a) of the FOI Act. I find that the Defence Forces was justified in its decision to refuse access to the four records in question under section 33(3)(a).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Defence Forces. I find that it is not required, by virtue of section 10(2)(a), to provide a more detailed explanation as to why the applicant did not pass the required security clearance stage of the recruitment process. I find that it was justified in its decision to refuse access to four records in their entirety under section 33(3)(a) of the FOI Act.

I find, however, that the Defence Forces was not justified in its decision to redact the name or names of staff members from records 5, 6, 7 and 8 under section 33(2)(a) and 33(1)(a) of the FOI Act and I direct the release of the redacted information at issue.

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 to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator