Case number: OIC-125682-Q3L8W0
16 November 2022
This decision has its background in a composite decision I issued in April 2022 wherein I annulled a decision of the Defence Forces to refuse the applicant’s request for certain records and his application for a statement of reasons for a particular act that affected him. I directed the Defence Forces to undertake a fresh decision making process in respect of both matters (cases OIC-119546 and OIC-119911 refer)
The original request, dated 10 November 2021, was for;
On 16 May 2022, the Defence Forces issued a fresh decision in respect of the application for a statement of reasons. It said it had decided to grant the application and said the applicant had been provided with the reasons in writing by the named medical professional during his visit in early May 2022.
On 2 June 2022, the applicant sought an internal review of that decision. The Defence Forces issued its internal review decision on 28 June 2022. It refused the access to records under section 15(1)(i) i.e. that the records sought have already been released. It said that the record was released directly to the applicant by the named medical profession in May 2022. On 29 June 2022, the applicant sought a review by this Office of the decision of the Defence Forces. This case is concerned with the request for records only.
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 Defence Forces and the applicant as outlined above, and to communications between this Office and both the applicant and the Defence Forces on the matter. I have also had regard to the contents of the record released to the applicant. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Defence Forces was justified in its decision to refuse, under section 15(1)(i) of the FOI Act, the applicant’s request for access to records regarding the reasons and decisions why the named doctor referred the applicant to the Defence Forces Consultant Psychiatrist, on the ground that the records sought were previously released to him.
Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester and where the records are available to the requester concerned. For the section to apply, the FOI body should be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.
The Defence Forces released one record to the applicant in May 2022. The named professional provided this Office with a copy of that record and a copy of another record dated January 2021 that is clearly within the scope of the request. The second record was not released during the course of this review but the Defence Forces provided a copy of a previous FOI request in March 2021 wherein that record was released to him.
During the course of the review, the Investigating Officer wrote to the Defence Forces and queried the mode of the referral, for example via letter. The named doctor carried out further searches and identified a record of the referral to the psychiatry unit. Considering the content of the record it is clear it is within the scope of the request. The named doctor submitted that he was of the opinion that the record should not be released directly to the applicant.
The question I must consider is whether the Defence Forces was justified in refusing access to records relating to the reason for and the decision to refer the applicant to the consultant. Considering that a further record was located, I cannot find that the Defence Forces was justified in refusing access to all relevant records on the ground that the records sought were previously released to the applicant.
I note that in its submissions, the Defence Forces has indicated it is unwilling to provide the applicant with the additional record located. If the Defence Forces decides to refuse access to the record it should identify the relevant exemption it is relying upon and give reasons for its decision.
I consider that the most appropriate course of action to take at this stage is to annul the decision of the Defence Forces, the effect of which is that the Defence Forces must consider the applicant’s request for access to records regarding the referral afresh and make a new, first instance decision in accordance with the provisions of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Defence Forces. I find that the Defence Forces was not justified in refusing the request for access to records under section 15(1)(i). I direct it to undertake a fresh decision making process on the request for records in accordance with the provisions of the FOI Act.
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.