Case number: OIC-139948-L7M8B2
04 October 2023
In a request dated 23 February 2023, the applicant sought access to records relating to a report prepared by a named Commandant (Comdt. Y) from 30 June – 2 Jul 2018 referring him for a medical examination, a copy of any handwritten notes, reports and documents written by the army doctor in the medical aid post in Barracks X on 2 July 2018 and records showing the chain of command relating to the referral/medical exam.
In a decision dated 12 May 2023, the Defence Forces part-granted the applicant’s request. It released a copy of his medical report with redactions under section 37(1) of the FOI Act. The Defence Forces refused access to further records under section 15(1)(a) of the FOI Act on the basis that no additional records existed.
On 18 May 2023, the applicant requested an internal review of the Defence Forces’ decision. He stated that he had not sought a medical review himself and that he was seeking records relating to his referral for a medical examination. He also stated that he was entitled to know the reason he was sent to the doctor against his will and the identity of the persons who had organised the medical review. He also queried the information withheld from release on the basis of section 37.
On 26 June 2023, the Defence Forces affirmed its original decision. On 27 June 2023, the applicant applied to this Office for a review of the Defence Forces’ decision.
During the course of this review, the Defence Forces made submissions to this Office in support of its refusal to release additional records as well as its reasoning for withholding certain information from the part-granted record on the basis of section 37(1) of the FOI Act. The Investigating Officer provided the applicant with details of the Defence Forces’ submissions. She invited the applicant to make further submissions on the matter, which he duly did.
During the course of this review, the Defence Forces indicated that it had located additional email correspondence relating to the applicant’s request. It also stated that after further review, it was willing to grant access to some of the information originally withheld from the released medical report. Accordingly, the Defence Forces released an additional record and a new version of the medical report with fewer redactions to the applicant. It continued to rely on section 37(1) of the FOI Act in relation to the names of third party individuals mentioned in the medical report. The Investigating Officer discussed the released records with the applicant and invited him to comment on the matter. The applicant indicated that he continued to object to the information withheld from release under section 37 and remained of the view that additional records relating to his referral to the MO should exist.
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 submissions made by the Defence Forces in support of its decision and to the applicant’s comments. I have also had regard to the contents of the relevant records located by the Defence Forces. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Defence Forces was justified in refusing access to additional records relating to the applicant’s request under section 15(1)(a) of the FOI Act on the basis that no further relevant records exist, and in refusing access to a medical report in part under section 37(1).
During the course of this review, the applicant repeatedly referred to the Department of Defence, rather than the Defence Forces. It is important to note that this review is solely concerned with his request for access to records to the Defences Forces and its decision on said request and does not concern the Department of Defence in any way.
In his correspondence with this Office the applicant also referred to his rights under employment law in relation to being required to attend for medical examination. He also disputed the Defence Forces’ submissions in relation to the circumstances in which he was required to attend for the medical examination concerned. He further stated that he did not give his permission for his medical report to be held on file by the Defence Forces. It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, including HR functions, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
It is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Section 37(1) of the FOI Act, subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record.
Section 2 of the FOI 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, including (iii) information relating to the employment or employment history of the individual, (v) information relating to the individual in a personnel record and (xiv) the views or opinions of another person about the individual.
Certain information is excluded from the definition of personal information. Where an individual is a member of staff of an FOI body, personal information does not include the name of the individual, or information relating to the position held or its functions, or the terms upon and subject to which the individual 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 of the position (Paragraph I refers).
The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.
During the course of this review, the Defence Forces revised its position on the information withheld from release on page 2 of the medical report and released this page in full to the applicant on 21 September 2023. The remaining information withheld from release comprises the names of various individuals mentioned in the context of certain allegations made by the applicant. In its submissions to this Office, the Defence Forces stated that given the context, it considers the information concerned to comprise sensitive personal information relating to third parties other than the applicant.
While I am required by section 25(3) to take precautions during a review to prevent the disclosure of exempt information, I believe I can appropriately describe the information as information that the applicant is likely to have provided to the MO in the course of his medical review. However, the fact that a requester may be aware of the nature of the information or may have even provided the information to the body does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
Furthermore, my understanding is that the information contained in the record at issue has its background in an allegation of misconduct made by the applicant against specific individuals. In the circumstances, I am satisfied that the information concerned relates to the individuals’ employment or employment history, and that the record contains the views or opinions of the applicant about these individuals. While section 2 of the Act provides an exception to the definition of personal information, I am satisfied, given the nature of the information at issue, that the exceptions do not apply. Having reviewed the record and redactions, I am satisfied that all of the withheld information is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the FOI Act applies to all of the remaining information contained in the medical report which has not been released.
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
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.
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 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.
However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors  IESC 57 (“the Enet case”), 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.
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 un-enumerated 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.
The applicant has not made any public interest arguments in relation to the release of the information withheld under section 37, other than to reiterate that he is entitled to his medical report in full.
As set out above, the Defence Forces’ position is that in the context of the record concerned, the names of the staff members mentioned in the medical report comprises sensitive personal information. I have carefully examined the record at issue and I am satisfied that its release in full would reveal the names of individuals who were alleged by the applicant to have been involved in certain behaviour.
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 operate to disapply section 37(1) and that the Defence Forces was justified in refusing access to the medical report concerned in part under section 37(1).
Section 15(1)(a) – do additional records exist?
The Defences Forces refused access to additional records relating to the applicant’s request under section 15(1)(a). Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
The Defence Forces initially stated that the medical report released in part was the only record located relating to the applicant’s request. As noted above, it located another record during the course of the review, which was released to the applicant. As also noted above, the Defence Forces provided this Office with submissions in support of its conclusion that no records relating to a report or referral by Comdt. Y or additional records concerning his medical examination exist or can be found. An outline of the Defence Forces’ submissions has been provided to the applicant and he commented in response. While I shall not set out the parties’ submissions in detail, I can confirm that I have had regard to them for the purpose of this review.
In summary, the Defence Forces stated that relevant staff members were consulted at Headquarters and in the Central Medical Unit (CMU). It said that searches were carried out at headquarters in an effort to locate records relating to the applicant’s request. It stated that the Lieutenant Colonel, and Comdt Y as well as another Commandant, who comprised the relevant chain of command, were consulted, at which point Comdt Y stated that he had not made a written referral to the MO in relation to the applicant. Its position was that the applicant “reported sick while on an exercise and therefore was instructed to attend [an] MO for his own wellbeing.”
The Defence Forces also stated, after consulting with its CMU, that the medical report dated 2 July 2018 was the only record written by the MO relating to the applicant’s request and that this record had been released in part to the applicant.
In his submissions to this Office, the applicant argued that the Defence Forces had an obligation to issue a written letter to direct him to attend the MO. As noted above, he disputed the Defence Forces’ statement that he had reported himself as sick. He also contended that Comdt. Y sent a report by email and stated that not all of the medical report released was recorded on the day of the examination.
On foot of the applicant’s comments, the Investigating Officer sought further details from the Defence Forces as to the usual procedure in such cases. In response, it stated that “[a]n officer, if concerned about the medical status of a person under their command, can direct that that person be reviewed by [an] MO to ascertain their fitness for duty.” It said that these orders can be given verbally, as is the case with most orders and directions within the Defence Forces.
I note the applicant’s comments regarding the Defence Forces’ obligations and his contention that events did not occur as the Defence Forces described. I also note his argument that Comdt. Y sent an email requesting a medical review. However, while he has objected to the Defence Forces’ submissions in this regard, he has not provided any substantive argument or evidence in support of his position.
In cases such as this, where conflicting information has been presented in relation to the recollection of past events, this Office is simply not in a position to accept one version of events over another in the absence of evidence to support that version. Rather, as outlined above, our role is to decide whether the Defence Forces has satisfactorily shown that it has taken all reasonable steps to ascertain the existence of the records sought.
It is, essentially, the Defence Forces’ position that no additional relevant records exist or can be found after all reasonable searches have been carried out. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist. It is also important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
It is also important to note that there are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records that are known to have existed at some point have not been located.
The Defence Forces has stated that instructions such as the one to the applicant to attend for medical review are given verbally, and that this was the case in relation to the medical review in question. I am satisfied that this would explain why no records of a report or referral exist. I am also satisfied that this explanation also addresses the lack of records relating to the chain of command in terms of who approved or requested that the applicant attend for medical review. Furthermore, in relation to records prepared by the doctor concerned, and the possibility that records may have been created before or after the appointment, I am satisfied that the specific wording of the applicant’s request solely sought records written by the doctor on the day of the examination.
Having considered the details of the searches undertaken and its explanation as to why no records exist or can be found, and in the absence of any evidence to the contrary, I am satisfied that the Defence Forces has carried out all reasonable steps in an effort to ascertain the whereabouts of additional records within the scope of the applicant’s request. I find, therefore, that the Defence Forces was justified in refusing access to further records apart from those already released on the grounds that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Defence Forces’ decision. I find that it was justified in refusing access to further relevant records under section 15(1)(a) of the FOI Act on the grounds that no additional records exist or can be found once all reasonable steps had been taken to locate them. I also find that the Defence Forces was justified in refusing access to some limited information contained in the medical report on the basis of section 37(1). I find that the public interest, on balance, does not favour its release.
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.