Mr X and Defence Forces

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 11 April 2022
• Case Outcome: The Senior Investigator annulled the decision of the Defence Forces and directed it to undertake a fresh decision making process on the matter.
• Court: Information Commission
• Respondent: Defence Forces
• Record Number: OIC-119546-G0Z1N0

Whether the Defence Forces was justified in refusing, under section 37(3) of the FOI Act, an application for a statement of the reasons why the applicant was referred to a consultant psychiatrist and for records relating to the referral

11 April 2022

Background

On 10 November 2021, the applicant submitted a request to the Defence Forces for

(i) The reasons and decisions why a named doctor referred the applicant to the Defence Forces Consultant Psychiatrist
(ii) Any information/emails or handwritten notes relating to him on this matter

On 7 December 2021, the Defence Forces purported to part grant the request. It released an email thread with some information redacted under section 37(1) of the Act. However, it did not provide a statement of reasons. The email thread released was created after receipt of the applicant’s FOI request and is a copy of internal correspondence between the Air Corp Front Line Decision Maker (FLDM) and headquarters FOI Unit discussing the FOI request. The information redacted is a personal mobile number belonging to a staff member.

On 23 December 2021, the applicant sought an internal review of that decision. On 24 January 2022, the Defence Forces varied its decision and purported to grant the request. It said arrangements would be made for the applicant to be furnished with the information sought in accordance with section 37(4) of the Act. However, no information or records were provided to the applicant. On 22 February 2022, the applicant sought a review by this Office of the decision of the Defence Forces.

Our review of the decision of the Defence Forces in respect of the application for a statement of reasons was processed under file reference OIC-119911, while our review of the decision on the request for records was processed under file reference OIC-119546. Having regard to the submissions made by the Defence Forces on the cases, I have decided to issue a composite decision covering both matters.

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 parties as outlined above and to the correspondence between this Office and both parties on the matter.

Scope of Review

This review is concerned with whether the Defence Forces was justified in refusing to provide, under section 37(3) of the FOI Act, a statement of the reasons why the applicant was referred to a consultant psychiatrist and related records.

Preliminary Matters

In his application to this Office, the applicant raised concerns about the manner of his treatment by the Defence Forces doctor in question. As the applicant is well aware at this stage given the significant number of reviews he has previously sought from this Office, we have 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. As he is also aware, there is an internal complaints process within the Defence Forces for submitting a Redress of Wrongs which can be appealed to the Ombudsman for the Defence Forces.

Analysis and Findings

Request for Records

The applicant sought access to records relating to him on the matter of his referral to the Defence Forces Consultant Psychiatrist. The records released were created after the request was made and as such, they fall outside the scope of the request. Indeed, no relevant records were identified by the Defence Forces at any stage during the processing of the applicant’s request or in the course of our review.

In her request for submissions, the Investigating Officer informed the Defence Forces of her opinion that it did appear to have carried out any searches to locate relevant records and that the case may have to be remitted for consideration afresh. She invited the Defence Forces to address those points if her view was incorrect. She also invited the Defence Forces to make submissions on the applicability of section 37(3) to the request for records.

In its submissions, the Defence Forces...