Case number: OIC-112390-X3X5C4

Whether the Defence Forces was justified in refusing, under section 37(3) of the FOI Act, an application for reasons why the applicant was medically downgraded by a named doctor in January 2021

 

OIC-112390-X3X5C4

 

Background

 

In a letter dated 25 January 2021, the applicant applied to the Defence Forces for “the reasons for the decision of [a named doctor] to medically downgrade me on 6 January 2021”. On 10 March 2021, the Defence Forces informed the applicant that it was necessary to extend the period for consideration of his request by 4 weeks under section 14 of the FOI Act as it was experiencing a high volume of requests. It said that as soon as it received the required documents, it would release the appropriate records without delay.

 

On 29 April 2021, the applicant sought an internal review of the deemed refusal of his request. On 30 June 2021, as the Defence Forces again failed to issue a decision within the statutory time-frame, the applicant sought a review by this Office of the deemed refusal of his application for a statement of reasons. This Office asked the Defence Forces to provide the applicant with its effective position on the matter. On 12 August 2021, the Defence Forces issued a letter to the applicant wherein it said that it directed its FOI Office to furnish the applicant with “the requested information in accordance with Section 37(4) of the FOI Act”.

 

On 2 September 2021, the applicant informed this Office that he had not received the information sought. This Office sought to clarify the matter with the Defence Forces. On 1 October 2021, the Defence Forces issued a revised decision wherein it said it had decided to refuse the applicant’s request under section 37(3) of the Act. It said that pursuant to section 37(4), his medical records would be released “to a professional person (General Practitioner) nominated by [him]”. Subsequently, the applicant informed this Office that he wished to proceed with the review. He did not accept that he should have to attend a GP to access the information requested.

 

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, and to communications between this Office and both the applicant and the Defence Forces on the matter.

 

 

Scope of Review

 

This review is concerned solely with whether the Defence Forces was justified in refusing, under section 37(3) of the Act, the applicant’s application for a statement of the reasons for the decision of a named doctor to medically downgrade him.

 

 

Preliminary Matters

 

In his application to this Office, the applicant complained about delays by the Defence Forces in responding to his application for a statement of reasons. As outlined above, the Defence Forces decided to extend the period for issuing its decision under section 14 of the Act on the ground that it was experiencing a high volume of requests. The grounds upon which an FOI body may extend the period for issuing a decision are quite limited. Section 13(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. However, under section 14(1), it may extend that four-week period by up to four further weeks where it considers that;

 

  1. the request relates to such number of records, or
  2. the number of other FOI requests relating either to the record or records to which the specified request relates or to information corresponding to that to which the specified request relates or to both that have been made to the body concerned before the specified request was made to it and in relation to which a decision under section 13 has not been made is such,

 

that compliance with section 13(1) within the four weeks specified is not reasonably possible.

 

It was not open to the Defence Forces to extend the period for issuing its decision on the basis of the high volume of requests on hand. Furthermore, even if the Defence Forces had appropriate grounds for extending the period under section 14(1), it should have included in its notification details of the applicant’s right to apply to this Office for a review of its decision to extend the period. I expect the Defence Forces to bring these matters to the attention of its decision makers to avoid a repeat occurrence of the errors.

 

As the Defence Forces is aware, the Central Policy Unit of the Department of Public Expenditure and Reform has published guidance and other relevant materials on its website in an effort to assist and support public bodies in the performance of their functions under the FOI Act. Among other things, it has published a suite of sample letters for use when processing requests. Had the Defence Forces availed of those template letters, it could have avoided the mistakes made when processing the applicant’s request. I would urge the Defence Forces to ensure that all of its decision makers are aware of, and make use of, those template letters.

 

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 the request was justified.

 

Furthermore, 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 is somewhat limited.

 

 

Analysis and Findings

 

In her invitation to the Defence Forces to make a submission on the case, the Investigating Officer informed the Defence Forces of her view that the applicant’s letter of 25 January 2021 comprised an application for a statement of reasons pursuant to section 10 of the Act. She drew its attention to section 10(11) which requires a public body to assist an applicant where the application is not in the proper form.  She invited the Defence Forces to make submissions, as appropriate, under sections 10, 37(3) and any other relevant provision of the Act.

 

In response, the Defence Forces made no substantive submission on the matter, apart from noting that the applicant had not return a completed GP nomination form to allow for the release of the record at issue to his nominated GP. It did not make any comments in response to the Investigating Officer’s view that the applicant had sought a statement of reasons under section 10.

 

Section 10(1) provides that a person who is affected by an act of an FOI 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 as well as a statement of any findings on any material issues of fact made for the purposes of that act. Under subsection (13), an act of a body is deemed to include a decision of the body. Subsection 10 provides that an application under section 10 must be expressed to be such an application. However, subsection (11) provides as follows:

 

Notwithstanding subsection (10), where an FOI body receives either –

 

  1. an application which purports to be an application under this section but which is not in the proper form, or
  2. an application which does not purport to be an application under this section but which applies for the information access to which can be obtained only by way of an application under this section,

 

the head shall assist, or offer to assist, the individual in the preparation of an application under this section."

 

Having examined the wording of the applicant’s letter of 25 January 2021, it is clear that he was seeking reasons for the reason to medically downgrade him. As such, I find that the Defence Forces should have been aware that the applicant was seeking a statement of reasons and that it should have offered to assist the applicant in the preparation of an application under section 10, pursuant to section 10(11) of the Act.

 

I also note that section 10(2)(a) provides that nothing in section 10 shall be construed as requiring the giving to a person of information contained in a record which would fall to be refused as an exempt record. However, as the Defence Forces made no substantive submission on the matter and as I am satisfied that the applicant did not make a request for records, it is not necessary for me to consider the grounds upon which the Defence Forces considered it appropriate to refuse access to the record it regarded as relevant, namely the application of section 37(3).

 

In the circumstances, I consider that the most appropriate course of action to take is to annul the decision of the Defence Forces and to direct it to consider the application afresh, having regard to my findings that the letter of 25 January 2021 comprised an application under section 10 for a statement of reasons.

 

Decision

 

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Defence Forces to refuse the applicant’s request under section 37(3) of the Act and direct it to process the applicant’s request afresh.

 

 

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.

 

 

 

Stephen Rafferty
Senior Investigator