Whether the Defence Forces has complied with the requirements of section 10 of the Act in connection with the applicant’s request for reasons for particular acts relating to the completion of a 2016 AF667 (performance appraisal report)
1 October 2021
On 7 July 2020, the sought information from the Defence Forces relating to the completion of a 2016 performance appraisal report (AF667). Specifically, he sought;
“(ii) The reasons and decisions [a named Officer] did my AF667 2016 when he was not in [a specified unit] long enough to complete it?
(iii) [The named Officer] stated that I refused to sign the AF667 2016. What date this occur? (sic)
(iv) The reasons for the delay in receiving this AF667 2016
(v) Any information/emails or hand-written notes on this.”
On 24 July 2020, the Defence Forces provided the applicant with a statement of reasons addressing the three points raised and stating that no other emails or notes were completed in relation to the AF667.
On 30 July 2020, the applicant sought an internal review of the Defence Forces’ decision on the ground that the statement provided was inaccurate. He also noted that a Redress of Wrongs investigation which examined a wide range of issues had also concluded that the AF667 was not completed within the correct timeframe. On 7 December 2020, the Defence Forces affirmed its original decision but also provided an amended response to the applicant in relation to the signing of the AF667. On 16 December 2020, 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
The application submitted by the applicant in this case was essentially an application for a statement of reasons under section 10 of the FOI Act. Accordingly, this review is concerned solely with whether the Defence Forces has complied with the requirements of section 10 in this case.
As has previously been 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 this Office's 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.
The requirement to provide a statement of reasons does not apply to every action of an FOI body This Office takes the view that the Oireachtas could not have intended that FOI bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the FOI body and its officials.
Taking section 10 as a whole, this Office considers 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. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question, then section 10 does not apply to that act.
Moreover, 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.
In this case, the applicant sought a statement of reasons as to why a named Officer completed his AF667 and the reasons for the delay in receiving the AF667. It seems to me that the substantive act taken in this case that affected the applicant was the act of the substantive completion of the AF667. Clearly, the substance of a performance appraisal has the potential to affect an individual and to confer on or withhold from the individual a benefit. However, the reason why the named Officer completed it could not, in my view, have had a bearing on the outcome of whether the applicant received or did not receive a benefit or suffered a loss or a penalty or other disadvantage. Similarly, I am satisfied that the reason why there was a delay in completing the AF667 could not have had a bearing on the outcome of whether the applicant received or did not receive a benefit or suffered a loss or a penalty or other disadvantage. As such, I find that the applicant does not have a material interest in matters affected by the acts identified and that he was not, therefore, entitled to a statement of reasons for those acts. In the circumstances, I find that the Defence Forces was not required to provide a statement of reasons for the acts identified in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces in this case. I find that it was not required, under section 10 of the FOI Act, to provide a statement of reasons for the acts identified by the applicant relating to the completion of a 2016 AF667.
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.