Case number: OIC-139093-T6Z6D3

Whether the Defence Forces has complied with the requirements of section 10 of the FOI Act in relation to the applicant’s request for a statement of reasons regarding the decision to move him to a particular post

 

28 July 2023

 

Background

The applicant is a current member of the Defence Forces. On 20 February 2023, he made a request under section 10 of the FOI Act for a statement of reasons for the decision of a named Commandant (Commandant X) to temporarily detach him on a scheduled basis to a particular post. He stated that the unit he had been assigned to had no “line military vacancy” and that the post attracted no “Tech pay”. The applicant indicated that the decision in question would have a material effect on him insofar as it would cause significant financial hardship and distress due to the added workload and not being paid the equivalent amount as other members doing the same job.

On 16 March 2023, the Defence Forces released a record, consisting of an email chain between the applicant and Commandant X referring to his new assignment. It made a number of redactions on the basis of section 37(1) of the FOI Act.

On 6 April 2023, the applicant sought an internal review of that decision. The Defence Forces varied its original decision on 10 May 2023. The internal reviewer affirmed the redactions under section 37(1) of the FOI Act and also provided the applicant with a statement of reasons. On 1 June 2023, the applicant sought a review by this Office of the decision of the Defence Forces.

During the course of this review, the Defence Forces provided submissions to this Office further elaborating on the reasons for the decision to move the applicant to the post concerned. The Investigating Officer provided the applicant with details of the Defence Forces’ submissions and invited him to comment. The applicant has not responded to date.

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 decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the Defence Forces has complied with the provisions of section 10 of the FOI Act in relation to the applicant’s request for a statement of reasons.

Preliminary Matters

I understand that the applicant’s pay has been negatively affected by the move to this post, even temporarily. He also appears to be of the view that the move has affected his career progression. In his application to this Office, the applicant referred to other options that he believes were open to the Defence Forces, rather than assign him to the post. However, it is important to note that 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.                                                                                  

Analysis and Findings

Section 10 of the FOI Act provides that a person who is affected by an act or decision 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 and of any findings on any material issues of fact made for the purposes of the act.

This Office takes the view that a statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. The statement should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However, a statement should not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision.

Furthermore, the requirement to provide a statement of reasons does not apply to everyaction of an FOI body. The Commissioner takes the view that the Oireachtas couldnot have intended that FOI bodies should be required, on demand, to provide awritten statement of reasons and findings on any material issues of fact made for thepurposes of every single action of the FOI body and its officials. Taking section 10 as a whole, the Commissioner’s view is that the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit.

There will be many instances where a number of secondary actions/decisions are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. While the person may be entitled to a statement of reasons for the substantive decision, the Commissioner considers that section 10 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision. The applicant has referred to the Defence Forces’ decision to assign him rather than a civilian member of staff and its decision not to pay him Tech pay and appeared to be arguing that these are acts or decisions relating to which he is entitled to a statement of reasons.

However, in its submissions to this Office, the Defence Forces referred to an administrative instruction from the Chief of Staff in March 2015, which set out certain positions in certain units that attract “Tech pay”. In brief, its position is that the applicant does not have a technical qualification and that no staff in the unit he was moved to are in receipt of Tech pay. The Defence Forces also stated that the particular Squadron concerned had no authority over the allocation of “Tech pay”. Essentially, it seems to me that the issue of “Tech pay” did not arise as part of the Defence Forces’ decision to move the applicant in this case. In the circumstances, I am satisfied that the act concerned is the Defence Forces’ decision to move the applicant to the new post.

The statement of reasons provided to the applicant at internal review stage referred to a particular staff member (Sergeant Y) who had worked in the post concerned. I understand that his departure from the Defence Forces had been unanticipated and that this created a “significant staffing challenge”. Essentially, the Defence Forces stated that while there was an ongoing recruitment process to identify a suitable replacement, the unit in question was key to the continued operation of the Air Corps. Its position was that Commandant X directed the applicant to assist the remaining member of staff in the unit on a temporary basis until a replacement was appointed, on the basis of his rank, length of service and significant experience, including experience in the unit in question.

In its submissions to this Office, the Defence Forces provided further details relating to the matters at hand. This included details of various internal regulations in support of its decision. As noted above, the Investigating Officer provided details of the Defence Forces’ submissions to the applicant and invited him to comment. As also noted, he has not made any further comments on the case.

In the particular circumstances of this case, I am satisfied that the Defence Forces has adequately explained why Commandant X choose to move the applicant on a scheduled basis to a particular post. It is important to note that section 10 is not concerned with the appropriateness, or otherwise, of administrative actions taken by public bodies, nor does the Commissioner have a role in examining such matters. Section 10 is solely concerned with providing the 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. Crucially, this Office has no role in determining whether the decision or act of the FOI body was justified. It is sufficient, for the purpose of compliance with section 10, that the body adequately explains why it acted as it did.

In conclusion, I find that the Defence Forces has provided the applicant with an adequate statement of reasons for the decision to move him on a scheduled basis to a particular post. Accordingly, I find that the Defence Forces has complied with provisions of section 10 of the FOI Act 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 the Defence Forces has complied with the provisions of section 10 of the FOI Act and that the statement provided is adequate.

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.

 

Sandra Murdiff
Investigator