Case number: OIC-117949-K1T3X3

Whether the Defence Forces has complied with the requirements of section 10 of the Act in response to an application for a statement of reasons as to why the applicant was not invited back to his unit for a retirement presentation

7 March 2022

Background

The applicant in this case is a retired member of the Defence Forces. On 29 November 2021, he sought a statement of reasons, under section 10 of the Act, for the decision of a named Unit not to invite him back for a presentation at recently held presentations for retired members of that Unit.

On 7 December 2021 the Defence Forces issued a decision to the applicant wherein it purported to grant the application. However, it did not issue a statement but instead released an email thread that included a response from the Officer Commanding the Unit, who said that “the question attempts to establish that a decision was made specifically in respect of the Inquirer. No such decision was made, nor would it be made by me.”

On 8 December 2021, the applicant sought an internal review of that decision. Amongst other things, he argued that the person who made the decision not to invite him to the presentation should be identified.

On 29 December 2021 the Defence Forces issued a decision again purporting to grant the request. It released a further email thread similar to that described above wherein the Commanding Officer repeated that no decision had been taken to specifically exclude the applicant and he explained the criteria that were employed for giving presentations to recently retired members of the named unit. On 11 January 2022, the applicant sought a review by this Office of the decision of the Defence Forces.

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 the communications between this Office and both the applicant and the Defence Forces on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Defence Forces has complied with the requirements of section 10 in respect of the application for a statement of reasons as to why the applicant was not invited to specified presentations for retired members of a named Unit.

Preliminary Matters                                                                

As previously explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Neither does our remit extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought.

Analysis and Findings

Section 10 of the FOI Act 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. Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member. 

On the matter of whether or not a person has a material interest in a matter affected by an act of an FOI body or to which it relates, a key consideration is whether the act has the consequence or effect of conferring on, or withholding, a benefit from the person and whether that benefit is also conferred on or withheld from persons in general or a class of persons.

In essence, the position of the Defence Forces is that the relevant Commanding Officer invited certain retired members to the presentation based on specific criteria and that no decision was taken specifically to refuse to invite the applicant. Only those who met the selection criteria were invited. In such circumstances, in so far as the failure to invite other retired members can be regarded as a withholding of a benefit, it seems to me that the benefit would be withheld from any and all retired members of the Unit that did not meet the criteria, including the applicant. As such, it seems to me that the applicant cannot be regarded as having a material interest in a matter affected by an act of the Defence Forces in this case.

Nevertheless, having considered the documentation the Defence Forces provided to the applicant at internal review, I am also satisfied that it has, indeed, provided an adequate statement of reasons in this case. The Commanding Officer explained that those who received an invitation were personnel who retired during the Commanding Officer’s tenure as head of the unit and had also served 20 years or more. As the applicant retired prior to the Commanding Officer taking up his role as head of the unit he did not meet the criteria of those who were invited.

I note that the Investigating Officer contacted the applicant during the review and informed him of her view that the statement provided was adequate for the purposes of the FOI Act. In response, the applicant did not dispute that he did not meet the criteria identified. Rather, he challenged the appropriateness of the criteria used.  As I have outlined above, our remit does not extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought. Section 10 is concerned with the provision of reasons for the act or decision and any findings on any material issues of fact made for the purposes of the act or decision concerned. If the body explains why it acted as it did, this Office has no further role in the matter.

In conclusion, therefore, I find that the Defence Forces has complied with the requirements of section 10 in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces. I find that it has provided an adequate statement of reasons to the applicant.

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