Mr X and Defence Forces

• Jurisdiction: Ireland
• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 16 September 2021
• Case Outcome: The Senior Investigator varied the decision of the Defence Forces. He directed release of some records and some redacted information withheld under sections 30(1)(b), 31(1)(a) and 37. He affirmed its decision to withhold one record under section 31(1)(a) and some information under section 37.
• Court: Information Commission
• Respondent: Defence Forces
• Record Number: OIC-105648-T7K0F1

Whether the Defence Forces was justified in refusing access to some information and records regarding the process of de-selecting the applicant from travelling on an overseas posting

16 September 2021

Background

The applicant is a member of the Defence Forces. He has served overseas on a number of occasions. He was selected for another overseas service with a specified battalion. However, he was then deselected for this overseas services as it emerged he had been remanded for Court Martial at an earlier date.

On 30 October 2020, the applicant applied for a statements of reasons regarding a number of aspects which led to (and including) his de-selection from the overseas posting. He also requested “all and any documents written or emailed in relation to this matter involving me”. The Defence Forces did not make a decision within the statutory time-frame of four weeks. The applicant sought an internal review of the deemed refusal of his request on 4 December 2020. On 14 January 2021, the Defence Forces released some records but redacted some information or withheld in full other records under sections 30(1)(b), 31(1)(a) and 37. On 26 March 2021, the applicant sought a review by this Office of the decision of the Defence Forces on his request for records.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to the correspondence between the applicant and the Defence Forces as set out above and to the correspondence between this Office and both the applicant and the Defence Forces on the matter. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Defence Forces in its communications with the applicant and with this Office.

Scope of the Review

My review in this case is concerned solely with the question of whether the Defence Forces was justified, under sections 37(1), 30(1)(b) and 31(1)(a) of the Act, in redacting certain information from records 11 to 14, 21, 23, 24, 26 and in refusing access to records 2 to 5, 7 to 10, and 15 to 18.

Preliminary Matter

While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision is somewhat limited.

It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Defence Forces to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Analysis and Findings

Section 30(1)(b) - Management Functions - Records 2, 3, 4, 5, 8, 9, 15, 16, and 17

Section 30(1)(b) of the Act provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).

Section 30(1)(b) is a ‘harm based’ exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b) should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. Furthermore, the body should explain how release of the particular record(s) at issue could reasonably be expected to give rise to the harm envisaged. A claim for exemption under these provisions must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption for records as a class which does not take account of the specific contents of each record is not sustainable.

When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a significant nature.

It should be noted that the exemption provided for in section 30(1)(b) is subject to a ‘public interest override’, by virtue of section 30(2) of the Act. In other words, even where the requirements of section 30(1)(b) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request. Where section 30(1)(b) of the Act is being relied on for the refusal of a record, the body must go on to consider the public interest test provided for in section 30(2) in relation to the record concerned.

The records withheld under section 30(1)(b) comprise internal email communications concerning the recommendation for de-selection of the applicant for overseas service by relevant decision makers based on information sought and received from relevant staff officers and officers in command appointments in the applicant’s unit and concerning a related outstanding Court Martial. Some of the records contain references to legal advice, or the attaining of legal advice, from an Internal Legal Adviser which was relied upon during the deliberative process when considering whether to recommend the applicant for de-selection. Some of the records can be described as general administrative correspondence regarding the court martial and discussions about de-selection.

In its submissions to this Office, the Defence Forces said the decision to refuse access to the records “arises from consideration afforded to HR functions involving the management of personnel, and in this case the communications, liaison and deliberations that were required and that were undertaken by and between HQ staff officers, officers in command appointments and officers in decision making roles in considering and deliberating on a...