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

5 December 2018 

Background

On 15 February 2018, the applicant sought from the Defence Forces a statement of reasons as to why he was unsuccessful in his application for recruitment to the Defence Forces. On 11 April 2018 the Defence Forces refused the application and cited section 35(1)(a) of the FOI Act for its refusal. That section is concerned with the protection of information given to public bodies in confidence.

The applicant sought an internal review of the decision on 26 April 2018. In its internal review decision of 28 May 2018, the Defence Forces varied its original decision. It stated that the applicant was not successful in his application for recruitment as he did not pass the required security clearance. While it provided no further elaboration on the matter, it stated that the more appropriate exemption was section 33(3) which is concerned, among other things, with the protection of information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State. On 4 September 2018 the applicant sought a review by this Office of the decision of the Defence Forces, stating that he wished to know the exact reason why he was deemed unsuitable for recruitment and what the security issue could be.

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 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. 

I should also explain that the appropriateness, or otherwise, of the substantive decision taken by the Defence Forces in respect of his application for recruitment is not a matter for examination by this Office. Our role is limited to determining whether the Defence Forces has complied with the requirements of the FOI Act.

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 did not pass the required 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)(a). That section provides for the mandatory refusal of a request if the record concerned contains 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 application for review, the applicant submitted the results of a Subject Access Request to An Garda Síochána in support of his argument that there could not be anything that could possibly affect his security clearance. He stated his belief that he had been unfairly rejected.

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 to provide the applicant with reasons as to 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 section 33(3)(a) of the FOI Act, then I must find that it is not required to do so.

While I am constrained by section 25(3) in the explanation I can give, I can confirm that the Defence Forces has provided satisfactory evidence to this Office to show that providing the applicant with the more detailed statement of reasons sought would require the disclosure of information that was obtained or prepared for the purpose of intelligence in respect of the security of the State and that such information is exempt from release under section 33(3)(a) of the FOI Act.  

I therefore find that the statement of reasons provided by the Defence Forces to the applicant meets the requirements of section 10 of the FOI Act and that it is not required to provide the fuller statement of reasons sought

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 that it is not required, by virtue of section 10(2)(a), to provide a more detailed statement of reasons as to why the applicant was unsuccessful in his application for recruitment to the Defence Forces.

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