Case number: OIC-143127-V6M1J7

Whether the Defence Forces was justified in refusing access to correspondence naming the applicant

 

14 March 2024

 

Background

The applicant is a member of the Defence Forces. His FOI request to the Defence Forces of 5 April 2023 sought access to all correspondence, dating from 1 August 2021 to 31 March 2023, where variations of his name and/or rank or serial number were included in the subject, body or any attachment. He specified that any email threads arising from the above, mails from military.ie, or other correspondence by any means should be included. He said that emails which he had sent or received using his own work address may be excluded. 

The Defence Forces effectively refused the request by not issuing a decision within the four-week timeframe required by the FOI Act. The applicant sought an internal review of the matter on 14 August 2023. The Defence Forces’ letter to the applicant of 16 October 2023 listed 28 records, which it said it was withholding under sections 32(1)(a)(i) (investigation of offences) and 32(1)(a)(ii) (enforcement of any law) of the FOI Act.

On 16 October 2023, the applicant applied to this Office for a review of the Defence Forces’ decision, including in relation to the adequacy of its searches for the requested records. During the review, the Defence Forces sought to rely also on sections 31(1)(a) (legal professional privilege) and 42(f) (restriction of FOI Act) in relation to the withheld records.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the Defence Forces and the applicant, the contents of the records at issue and the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to (i) whether the Defence Forces is justified in relying on section 15(1)(a) of the FOI Act on the basis that further records covered by the request do not exist or cannot be found after reasonable searches have been carried out, and (ii) whether the Defence Forces’ refusal of access to the 28 records was justified under the provisions of the FOI Act. The letter of 16 October describes the 28 records as containing roughly 95 emails in email trails. However, it does not indicate that the records contain over 980 pages or describe their contents.

The applicant says that the Defence Forces took six months to deal with his request, and then it issued a blanket refusal of all material. He says that the Defence Forces has omitted multiple emails of critical importance to various ongoing proceedings, and is controlling the FOI process to restrict the release of records likely to support such proceedings or complaints. He says that the Defence Forces has also delayed dealing with his other FOI requests and ultimately only released limited documentation.

It is important to note that a review carried out under section 22 of the FOI Act cannot examine the Defence Forces’ processing of this or other FOI requests, or its dealings with the applicant generally. In turn, I cannot take account of the applicant’s views on these matters.

Preliminary Matters

Section 25(3) of the Act requires me to take all reasonable precautions in the performance of my functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.

Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

Finally, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that "it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest." I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard".

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, this Office must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Defence Forces’ decision making

I wish to draw the Defence Forces’ attention to the FOI Act’s requirements for the issuing of original and internal review decisions. In particular, sections 13(1) and 21(4) require FOI bodies to issue original and internal review decisions within four and three weeks, respectively, after receipt of the FOI request or application for internal review. As set out in the Background section, the Defence Forces did not comply with these requirements in relation to either the applicant’s original request or his application for internal review. 

Furthermore, sections 13(2)(d) and 21(5)(c) require that, where an FOI body decides to refuse to grant a request, the notification of the decision shall specify various matters, including the reasons for the refusal and the findings on any material issues relevant to the decision. As set out below, the Defence Forces’ letter of 16 October 2023 does not explain how disclosure of the records could result in the harms it claims could arise accordingly.

The Defence Forces may wish to have regard to the guidance for FOI bodies that is available on the website of the Department for Public Expenditure and Reform's Central Policy Unit (CPU). In addition, the Minister for Public Expenditure and Reform has published a Code of Practice (the Code) for public bodies pursuant to section 48 of the Act, which is also available on the CPU's website. The Code includes key details relevant to the processing of requests and the contents of decisions. Under section 48(3) of the FOI Act, public bodies must have regard to the Code in the performance of their functions under the Act.

Analysis and Findings

Section 15(1)(a) – reasonable searches/whether further records exist

The applicant maintains that further records should have been considered for release. However, the Defence Forces’ position is that it has taken reasonable steps to identify all records covered by the request, which is an effective reliance on section 15(1)(a) of the FOI Act.

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not the FOI body is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to look for records.

The parties’ arguments

In particular, the applicant gives the following general examples of further records that he says should have been considered for release: 

  • Mails from military medical officers to other military officers; 
  • Mails to the Department of Defence from Senior Officers;
  • Mails to any outside agencies;
  • Emails with the domain military.ie;
  • Emails concerning a complaint he made further the internal grievance procedure.

I gave the above (and other) details to the Defence Forces and asked it to make a submission describing its searches for records. Noting that the request covers “correspondence by any means”, I said that it would also seem to cover hard copy records. Amongst other queries, I asked the Defence Forces to confirm whether its search criteria included the variations of the applicant’s name, rank and serial number that were specified in his request. I asked for details of the personnel/areas that might be expected to hold records of the sort requested, and whether such personnel were consulted and relevant file holdings searched. I also asked it to identify any elements of the 28 records that appeared to correspond with the records identified by the applicant as missing.

In summary, the Defence Forces says that even though the request uses the term “all correspondence”, the applicant’s use of the terms “subject, body [and] attachment”, and his exclusion of certain emails, led it to interpret the request as being confined to emails and their attachments. It says that all deleted, junk, sent and received emails are held on its servers in perpetuity, and can be searched for and retrieved at any time via the mailmeter email management system. It says that its IT Branch “input the relevant keywords and timeline stated in the request and proceeded to extract these emails from the system”. It says that it sees no evidence of missing documents amongst the 28 records because it has “not been supplied with any examples.”

Analysis

The Defence Forces’ submission does not state the “relevant keywords” that it says its IT branch used to search the email system. Furthermore, the submission does not suggest that searches were carried out to account for e.g. emails containing misspellings of the applicant’s name or where his serial number was not quoted properly. While I could seek clarification on these matters, the request seeks “correspondence by any means”, and accordingly covers hard copy correspondence (e.g. correspondence that was sent or delivered by hand, and/or by ordinary or registered post). However, the Defence Forces has confined its searches to emails. In addition, the lack of response to my question on the matter suggests that it did not ask any relevant personnel whether they may hold any records covered by the request.

In summary, I am not satisfied that the Defence Forces’ searches were reasonable for the purposes of section 15(1)(a) of the FOI Act. In the circumstances, I have decided to annul its effective reliance on section 15(1)(a) and to require it to make a fresh decision on the matter in accordance with the provisions of the FOI Act.

As noted earlier, I gave the Defence Forces the applicant’s general description of the types of record that he considers to be missing, and asked it to identify any elements of the 28 records that appeared to correspond with that description. I have not asked the Defence Forces to explain its comment to the effect that it was not given any examples of missing records. However, as I said earlier, the letter of 16 October does not indicate that over 980 pages are at issue, or give any overview of their contents. In any event, from my initial examination of the records, they seem to me to contain at least some of the general types of correspondence described by the applicant.

The 28 withheld records

The Defence Forces relies on sections 32(1)(a)(i) and (ii) in relation to the 28 records. Further to my request for submissions, it now seeks to also rely on section 31(1)(a) and “section 42” of the FOI Act, which I take as a reference to section 42(f) of the Act.

The relevant provisions

Section 31(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP).

LPP enables the client to maintain the confidentiality of two types of communication:

  • confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege) and
  • confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Section 32(1)(a)(i) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid. Section 32(1)(a)(i) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. These exemptions are subject to a public interest test; however, the public interest test requires consideration only where certain limited circumstances exist (section 32(3)).

Generally speaking, section 32(1)(a) is a harm based exemption. Where an FOI body relies on this provision, it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure. For instance, in relation to a claim under section 32(1)(a)(i), the FOI body should identify the relevant function or the relevant lawful methods, systems, plans or procedures. In relation to a claim under section 32(1)(a)(ii), it should identify the relevant law and explain whether it is the enforcement of, the compliance with, or the administration of that law that is at issue. In relation to both exemptions, it should then describe the nature of the prejudice or impairment expected (the harm), and explain how release of the particular record is expected to cause that harm and why it is considered that the harm identified could reasonably be expected to occur.

A mere assertion of an expectation of harm is not sufficient. Furthermore, while granting access to a record may be likely to have some effect, or while a record may relate to matters specified in paragraphs (i) and (ii), it is not necessarily the case that disclosure could reasonably be expected to prejudice or impair the relevant specified matter.

Section 42(f) provides that the FOI Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration. The Chief State Solicitor’s Office (CSSO) is a constituent part of the Office of the Attorney General; thus, section 42(f) also applies to such a record held or created by that Office.

Arguments made

The Defence Forces’ letter to the applicant of 16 October 2023 said only that the 28 records were pertinent to a scheduled court hearing, and that their premature disclosure could reasonably be expected to prejudice to impair an investigation.

In inviting the Defence Forces’ submissions on the matter, I said that it appeared to have refused the records as a class rather than on the basis of the individual contents of the 980+ pages therein. I referred to some of those contents, including correspondence to and from the applicant’s legal advisors and related administrative records, and said that I did not see how disclosure thereof could meet the standard of harm in the exemptions claimed.

I said also that while a record may be pertinent to a court hearing, this does not automatically render it exempt under section 32(1)(a), which contains a standard of “prejudice or impair”. I invited the Defence Forces to explain how disclosure of the particular details at issue could prejudice or impair the matters set out in sections 32(1)(a)(i) and (ii) of the FOI Act.

The Defence Forces’ submission says that the records pertain to an ongoing legal matter and that release “could prejudice or impair this investigation”. It refers to the disclosure of records under FOI being equivalent to their publication to the world at large. In this context, it says that if the records were published online in any form or taken up by the media etc., this “could have a significant impact on this investigation” and also “a detrimental effect” on the relevant legal proceedings. It says that a harm based test was considered.

The Defence Forces says also that records 9, 11, 15, 22, 24 and 26 “have mention or correspondence from the [Chief State Solicitor’s Office (CSSO)]” and that it should have considered section 42 in relation to these. It says that records 1, 10, 14, 15, 17, 20, 21, 23, 24 and 27 “contain conversations of legal privilege” and refers generally to section 31(1)(a).

The submission then describes each of the 28 records and, as appropriate, says they should be refused under sections 31(1)(a), 32(1)(a) or 42 because they include discussions with legal branch; or because they refer or relate to the CSSO; or because their disclosure would have significant impact on ongoing legal or investigative processes.

Finally, the Defence Forces says that it would be willing to release records 12, 13 and 16 (correspondence registers and associated emails) “if required with necessary third party redactions applied”. However, it also says that it would be hesitant to release these records because they ultimately form part of the ongoing investigation and legal process.

Analysis

In relation to its claims under section 32(1)(a)(i) or (ii), the Defence Forces does not explain how disclosure of the particular details in the records at issue could reasonably be expected to prejudice or impair the relevant investigations or legal proceedings. A record does not qualify for exemption under section 32(1)(a)(i) or (ii) solely because it relates to an investigation or legal proceedings. However, the Defence Forces does not describe or elaborate on the harm based test referred to in its submission. While it claims that disclosure could lead to online publication or media comment that would have a detrimental impact on ongoing investigations and/or legal proceedings, the Defence Forces does not describe those impacts or explain how they might arise. Furthermore, its position on records 12, 13, and 16 is unclear.

The Defence Forces also makes general claims that section 31(1)(a) and 42(f) are relevant to various records without specifying any particular excerpts thereof to which these provisions may be relevant. By way of sole example, the Defence Forces says that “[r]ecord 22 is a record relating to the CSSO which is recommended to be refused under section 42.” I note that the letter to the applicant of 16 October 2023 describes record 22 as an “Email Trail (4 emails”). However, from my examination of this record, I note that it contains 42 pages and more than four emails. Furthermore, while one email refers to the CSSO, it is not apparent to me that record 22 includes any records received from the CSSO.

In summary, the Defence Forces’ submission does not change my view that it refused the 28 records as a class and without having proper regard to their contents. However, I do not consider it appropriate for me to direct the release of the records concerned. For one matter, the mandatory sections 31(1)(a) and 42(f) may well have relevance to parts of the records. Furthermore, I note also that some of the records include personal information about parties other than the applicant, such that the mandatory section 37 of the FOI Act (personal information) would require consideration.

However, this Office is not a first instance decision maker. Accordingly, I have decided to annul the Defence Forces’ refusal of records 1-28 and to direct it to make a fresh decision on those records in accordance with the provisions of the FOI Act. Given the issues that have arisen in this case, including in relation to the adequacy of the searches for records, it would also be in the interests of all the parties for the Defence Forces to give more informative schedules of records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Defence Forces’ decision on the applicant’s request. I direct it to make a fresh decision on the matter in accordance with the provisions 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Anne Lyons
Investigator