Whether the Defence Forces have provided the applicant with an adequate statement of reasons under section 10 of the FOI Act in relation to his unsuccessful application for enlistment

07/06/2018

Background

On 5 December 2017, the applicant sought from the Defence Forces a statement of reasons as to why he was unsuccessful in his application as part of a general enlistment recruitment competition.  On 18 December the Defence Forces issued its decision in which it listed the various stages of the recruitment process and stated that the applicant had not satisfied all criteria required for enlistment.  

The applicant sought an internal review of this decision on 29 December 2017.  In its internal review decision of 29 January 2018, the Defence Forces stated that the specific criteria which the applicant failed to satisfy could not be disclosed under section 35(1)(a) of the FOI Act. That section provides for the refusal of a request for access to records containing information given to a public body in confidence. On 8 February 2018 the applicant sought a review by this Office of the decision of the Defence Forces.

During the course of the review and following engagements with this Office, the Defence Forces issued a revised statement of reasons to the applicant. The revised statement indicated that the applicant was found to be unsuitable for recruitment as he did not pass the required security clearance stage of the recruitment process. It also relied on section 33(3) in refusing to provide any further details.

Following receipt of this revised statement of reasons the applicant indicated that he wished the review to continue as the statement did not explain why he had not passed the security clearance stage. I have decided to bring this review to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the applicant and the Defence Forces and to the correspondence between this Office and both the applicant and the Defence Forces on the matter.

Scope of the Review

This review is concerned solely with the question of whether the revised statement of reasons issued by the Defence Forces as to why the applicant was unsuccessful in his recruitment application is adequate for the purposes of section 10 of the FOI Act, or whether it is required to provide a more detailed statement of reasons.

Preliminary Matters

While I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt.  This constraint means that, in the present case, the extent of the reasons that I can give is quite limited.    

Analysis and Findings

Section 10 of the FOI Act provides that a person who is affected by an act of a public 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 and of any findings on any material issues of fact made for the purposes of the act.  However this is not an absolute right. Under section 10(2)(a), the public body is not required to include in such a statement information that is contained in a record that is otherwise exempt. In other words, if the public body is entitled to refuse access to a record on the ground that it is exempt from release, it does not have to include the information contained in that record in a statement of reasons.

In essence, the position of the Defence Forces is that it is not required to provide the applicant with a more detailed explanation as to why he had not passed the security clearance stage of the recruitment process as to do so would require the disclosure of information contained in a record that is exempt from release under section 33(3). That section provides for the mandatory refusal of a request if the record concerned contains, among other things, information that was obtained or prepared for the purpose of intelligence in respect of the security of the State.

It is important to note that this exemption is what is commonly referred to as a class based exemption. If the information at issue is of a type or class that is captured by the information described in the exemption then it is exempt. The public body is not required to identify a potential harm that might arise from disclosure of the record. In addition there is no public interest override which would allow for the consideration of whether the public interest would be served by release.

In his submission to this Office, the applicant stated that he has never been involved in any activity, or known or associated with anyone, or known about any incident, that would undermine the security of the State. He recounted a particular incident about which he stated he had already informed the Defence Forces on two separate occasions and that he had been informed would not affect his application. He also expressed his concerns as to whether the information the Defence Forces relied upon when considering him for security clearance would prevent him from securing other employment in the public sector.

While I have some sympathy with the applicant's predicament, the remit of this Office in such cases is quite limited. If the Defence Forces can satisfy this Office that the information at issue was obtained or prepared for the purpose of intelligence in respect of the security of the State, then such information is exempt from release and the Defence Forces is not required to include such information in a statement of reasons.

While I am constrained by section 25(3) in the reasons I can give, I am satisfied, having carefully considered the submissions of the Defence Forces, that to provide the applicant with a more comprehensive statement of reasons that would explain why he had not passed the security clearance stage of the recruitment process would require the giving to him of information contained in a record which is exempt under the provisions of section 33(3) of the FOI Act. 

I therefore find that the revised statement of reasons provided by the Defence Forces to the applicant meets the requirements of section 10 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Defence Forces on the ground that it has provided the applicant with an adequate statement of the reasons as to why he was unsuccessful in his application for recruitment.

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 by the applicant not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator