Case number: OIC -53311-W4K8T5 (190081)
30 July 2019
My decision covers two separate requests submitted by the applicant to the Defence Forces for access to records relating to instructions issued by the Director of the Defence Forces Medical Corps (the DMC). As the parties to the reviews are identical, and given that both reviews relate to a refusal of access to similar records by the Defence Forces under section 32(1) of the FOI Act, I have decided to consider the applications together.
In requests dated 9 November 2018 and 13 December 2018, the applicant sought access to DMC Instruction 47 (Case No. OIC-53310-S3B3B8) and DMC Instruction 22, as well as copies of all amendments to Instruction 22 up to 2013 (Case No. OIC -53311-W4K8T5).
In decisions dated 16 and 17 January 2019, the Defence Forces identified one record relating to each request. It refused to grant access to both records on the basis of section 32(1)(a)(iv) of the FOI Act. The applicant applied for an internal review of both decisions on 28 January 2019. The Defence Forces affirmed its original decision in both cases on 7 February 2019.
On 14 February 2019, the applicant applied to this Office for a review of the Defence Forces’ decisions.
I have now completed my reviews in accordance with section 22(2) of the FOI Act. In carrying out my reviews, I have had regard to the submissions made by the applicant, her comments in her applications for review and to the submissions made by the FOI body in support of its decisions. I have also had regard to the contents of the records concerned. I have decided to conclude these reviews by way of a formal, binding decision.
During the course of this review, this Office’s Investigator asked the Defence Forces to comment on matters raised by the applicant in her submission to the Defence Forces. In response, the Defence Forces reconsidered its position and decided to grant access to some records in part to the applicant. It has maintained its position that section 32(1)(a)(iv) applies to the remaining information at issue.
Accordingly, this review is solely concerned with whether the Defence Forces was justified in its decision to refuse to grant access to the records sought in full on the basis of section 32(1)(a)(iv) of the FOI Act.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
It is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
During this review, the Defence Forces identified the following records relating to the applicant’s requests, as follows:
Case No. OIC-53310-S3B3B8 (DMC Instruction 47)
Released in part - Instruction 47
Case No. OIC -53311-W4K8T5 (DMC Instruction 22 and amendments)
Released in full - Instruction 22, Amendments 4, 9-12
Withheld - Amendments 2, 3, 5 , 5A, 6, 7 and 8
It relied on section 32(1)(a)(iv) of the FOI Act to withhold access to the records refused in full or in part.
Section 32(1)(a)(iv) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice or impair the fairness of civil proceedings in a court or other tribunal. Under section 32(1)(a)(iv), it is necessary for the Defence Forces first to identify the potential harm to the fairness of the civil proceedings concerned that could arise as a result of the disclosure of the record at issue. Having identified the potential harm, the Defence Forces is then required to show that its expectation of such harm arising is reasonable.
In submissions to this Office, the Defence Forces explained the background and context of this case and the records at issue. In essence, it argued that releasing the records at a time when they were being considered by the courts in a number of civil cases and likely to be before the courts in pending cases could lead to manifest unfairness to the proceedings concerned. It also referred to ongoing publicity campaigns relating to the claims being brought. It was of the view that the release of information in the records, which were, as I understand it, written for and by medical professionals, and were being contested could reasonably be expected to affect the proceedings in any one of the pending cases. Essentially, it was concerned that the justification of the policy in court was likely to be impaired, damaged or weakened by the publicity and commentary which were likely to ensue if the records were released.
The applicant has acknowledged that cases are ongoing concerning the records sought. She has argued that just because records are sought under discovery in one case, it does not necessarily follow that they will be sought in others. She was also of the view that it would not be reasonable to refuse access to records on the basis that they might play a part in subsequent litigation.
I am conscious that records provided to parties to a court case under discovery are subject to specific undertakings. As noted above, records released under FOI are viewed as released to the world at large, as no restrictions apply. I am also aware that in previous decisions of this Office, it has been accepted that there are many instances where the release of information could prejudice or impair the fairness of such proceedings; for example, if the disclosure of information were to result in prejudicial pre-trial publicity.
In the circumstances of these cases, I am willing to accept that the information in the records at issue is likely to play a substantive part in the litigation before the courts. While section 25(3) of the FOI Act precludes me form discussing the contents of the records in detail, I am satisfied that that the Defence Forces has identified a potential harm to the fairness of the proceedings and that its expectation that such harm could arise if the records were to be released to the world at large at this point in time is reasonable. Accordingly, I find that section 32(1)(a)(iv) applies to the nine records withheld in full or in part by the Defence Forces.
The public interest test in section 32 is limited to certain specified circumstances specified in section 32(3)(a)(i) or (a)(ii). If any of those circumstances exist and the FOI body considers that the public interest would, on balance, be better served by granting the request (section 32(3)(b) refers), then the exemption at section 32(1) does not apply.
There is nothing before me to indicate that section 32(3)(a) or (b) applies to the records at issue in these cases. Accordingly, I find that section 32(3) does not disapply section 32(1)(a)(iv) to the records concerned.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the amended decision of the Defence Forces to refuse to grant access to the records concerned, in full or in part, on the basis of section 32(1)(a)(iv) of the FOI Act.
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.