Whether the Defence Forces was justified in refusing the applicant’s request for reasons for the refusal to refund medical expenses on the ground that section 15(1)(i) of the FOI Act applies
30 September 2021
In a letter dated 25 January 2021, the applicant said he was submitting a request under the FOI Act for certain information to be made available to him. Specifically, he requested “the reasons for the decisions of [a named Doctor] to NOT authorize refund of medical expenses and where such decision has its basis in Defence Forces Regulations”.
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 23 August 2021, the Defence Forces issued a late internal review decision wherein it refused the request under section 15(1)(i) of the Act. It said that the request relates to information already released to him during the course of a consultation with the named doctor on 6 January 2021. On 6 September 2021, the applicant sought a review by this Office of the Defence Force’s refusal of his request.
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 the applicant’s request under section 15(1)(i) of the Act on the ground that the information has previously been released to the applicant.
In his application to this Office, the applicant complained about delays by the Defence Forces in responding to his FOI request. As outlined above, the Defence Forces decided to extend the period for issuing its decision on the request 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;
a) the request relates to such number of records, or
b) 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 would 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.
Analysis and Findings
During the course of the review, the Investigating Officer informed the Defence Forces of her view that the applicant’s letter of 25 January 2021 comprised an applicant for a statement of reasons, pursuant to section 10 of the Act. In response, the Defence Forces said it was not expressly clear to it that section 10 of the Act applied in this case.
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 –
a) an application which purports to be an application under this section but which is not in the proper form, or
b) 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."
In essence, an FOI body cannot treat an application for a statement of reasons as invalid based solely on the fact that the application was not expressed as such an application unless it has first assisted, or offered to assist the individual in the preparation of a proper application.
Having examined the wording of the applicant’s letter of 25 January 2021, it seems to me that it essentially comprises two parts. First, the applicant is seeking reasons for a specified decision taken by the Defence Forces, namely the refusal of medical expenses. While the position of the Defence Forces is that it was not expressly clear to it that section 10 applied in this case, it is apparent to me that the applicant explicitly sought reasons for a specified decision. 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 would add that section 15(1)(i) provides for the administrative refusal of a request for records where the records sought have previously been released to the requester. As such, while I note that the Defence Forces is of the view that the reasons for the decision in question were previously been explained to the applicant in a medical consultation, this does not entitle it to rely upon section 15(1)(i) to refuse an application under section 10. I would also note, however, that it may well be entitled to rely on rely on documents previously released to argue that it has already complied with its obligations under section 10 if such documents did, in fact, contain the reasons sought.
The second part of the applicant’s request, in my view, is a request for information as to where in Defence Forces Regulations the decision to refuse medical expenses has its basis. This, in my view, should have been treated by the Defence Forces as a request under section 11 for records that might contain such information, such as an extract from relevant Defence Forces Regulations. The Defence Forces made no reference to this aspect of the request in its internal review decision.
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 request afresh, having regard to my findings that the letter of 25 January 201 comprised both an application under section 10 for a statement of reasons and a request for records under section 11.
Finally, I would add that I am aware that the applicant in this case is a regular user of the FOI Act and that the provisions of section 11 have been explained to him previously. It would to the benefit of both parties if he ensured that any future applications or requests made are in the appropriate form. If he is in any doubt as to the form to be followed, it is open to him to seek to clarify the matter with the Defence Forces in the first instance.
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 15(1)(i) 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.