Whether the Department was justified in refusing to provide the applicant with a statement of reasons, pursuant to section 10 of the Act, for the Minister’s decision to accept a report issued by the Ombudsman for the Defence Forces in connection with a complaint made by him

17 June 2021

Background

This review arises from a complaint made by the applicant, a former member of the Defence forces, to the Ombudsman for Defence Forces (the ODF) in relation to a Redress of Wrongs. A report was prepared by the ODF on the matter and submitted to the Minister for Defence for his consideration, following which the Minister issued a determination accepting the report. 

On 28 December 2020, the applicant sought from the Defence Forces a statement of reasons for the decision of the Minister to accept the report issued by the ODF given that, in his view, the report condoned breaches of certain stated Defence Forces Regulations. He also sought a copy of all documents, correspondence and regulations on which the Minister based his decision.

On 27 January 2021, the Department issued a decision on the request for records but did not address the application for a statement of reasons. The applicant sought an internal review of that decision on the ground that the application for a statement of reasons had not been addressed. On 10 February 2021, the Department affirmed its original decision in respect of the request for records. It referenced a submission that had been made to the Minister in relation to his case and that had been released on foot of his request for records. It said that this submission “sets out the process upon which the Minister made his decision”. On 15 February 2021, the applicant sought a review by this Office of the Department’s decision on the ground that he had not been provided with the statement of reasons sought.

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 applicant and the Department as set out above and to the communications between this Office and both the Department and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While the Department argued in its internal review decision that the submission released to the applicant sets out the process upon which the Minister made his decision, it is apparent from its submissions to this Office during the course of the review that it did not process the application made by the applicant for a statement of reasons as a valid application made under section 10 of the Act.

Accordingly, this review is solely concerned with whether the Department was justified in refusing to provide the applicant with a statement of reasons for the Minister’s decision to accept a report issued by the ODF in connection with a complaint made by him.

Analysis and Findings

Validity of the application

Section 10 provides that a person who is affected by an act of an FOI 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 as well as a statement of any findings on any material issues of fact made for the purposes of that act. Subsection 10 of section 10 provides that an application under section 10 must be expressed to be such an application.

In it submission to this Office, the Department stated that the applicant’s request did not state that it was an application being made under section 10 of the Act and, as a “statement of reasons” was not referred to or requested, it was not clear that it was intended as such.

Subsection (11) of section 10 provides as follows:

“Notwithstanding subsection (10), where an FOI body receives either –

a) an application which purports to be an application under this section but which is not in the proper form, or
b) an application which does not purport to be an application under this section but which applies for the information access to which can be obtained only by way of an application under this section,

the head shall assist, or offer to assist, the individual in the preparation of an application under this section."

In essence, an FOI body cannot treat an application for a statement of reasons as invalid based solely on the fact that the application was not expressed as such an application unless it has first assisted, or offered to assist the individual in the preparation of a proper application. The Department offered no such assistance in this case.

In his letter of 28 December 2020, the applicant expressly asked that he be given the reason for the decision of the Minister to accept the report issued by the ODF. As such, I do not accept that it was not clear that he had intended to apply for a statement of reasons under section 10. Furthermore, it seems to me that when it issued its internal review decision, the Department did, indeed, accept that a statement of reasons was sought by arguing that the submission released to the applicant sets out the process upon which the Minister made his decision. In the circumstances, I am satisfied that the Department should have known that the application had applied for a statement of reasons and that it should have considered that application pursuant to the provisions of section 10.

Entitlement to a statement of reasons

To be entitled to a statement of reasons for an act of a public body, the person must be affected by the act and must have a material interest in a matter affected by the act or to which it relates. For the purposes of section 10, an act of the body includes a decision of the body. Subsection (5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which such an act relates if the consequence or effect of the act may be to confer on, or withhold from, the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member. Under subsection (13), benefit is defined as including any advantage to the person, or the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

In its submissions to this Office, the Department argued that under the terms of the Ombudsman (Defence Forces) Act 2004, the ODF is independent in the performance of his functions. It said it is not within the gift of the Minister to impact on an investigation being undertaken by the ODF. It said the Minister issues a response to the ODF’s written report following the completion of an investigation by the ODF into a complaint and upon consideration of any findings and/or recommendations contained therein.

In a further submission to this Office, the Department clarified that following completion of an investigation by the ODF, a report, which may or may not include any recommendations, is referred to the Chief of Staff of the Defence Forces and then to the Minister for consideration and final decision. The Department stated that it is open to the Minister to accept or reject a recommendation, as he considers appropriate in the context of relevant legislation, regulations, current HR policies and practices within the Defence Forces, and also, where relevant in the wider Public Service, military operational and security considerations. The Minister informs both the ODF and the Chief of Staff of his decision and includes an explanation of his reasoning where the decision is contrary to the ODF’s recommendation. The Department went on to state that where no recommendation is made by the ODF, the Minister may choose to note the report and inform the Chief of Staff and the ODF. The Department clarified that the Minister has the power to seek clarification of an ODF report and to decline to accept the report. While the Department stated that this is a rare occurrence, it is clear that in accepting the report, the Minister exercised his power to do so.

The Department argued that in this case, the ODF conducted an independent investigation, having also given consideration to the previous investigation carried out under the Redress of Wrongs process. It said the ODF found that the applicant was not wronged and made no recommendations. It added that the ODF noted that the applicant has retired from the Defence Forces and that, in an effort to address the issue subject of his complaint, mediation was advised and undertaken prior to his retirement. It argued that the applicant was at no material benefit, or loss, from the outcome of the ODF’s investigation or from the Minister’s determination on same.

The act identified by the applicant in this case was the decision of the Minister to accept the report prepared by the ODF. In essence, the applicant argued that he has a material interest in matters affected by the decision of the Minister to accept the ODF report. He argued that the decision denied him the benefit of the fundamental principle of natural justice and fair procedure based on his assertion that the report condoned breaches of certain stated Defence Forces Regulations.

While this Office has no remit to make any findings on the matter of whether the report condoned breaches of certain stated Defence Forces Regulations or whether the Minister ought to have accepted the ODF’s report or not, I am satisfied that the applicant does, indeed, have a material interest in the decision taken by the Minister to accept the ODF’s report which found that the he had not been wronged. By accepting the ODF’s report, the applicant was denied the potential benefit of having his complaint upheld. The very fact of the Minister’s role in issuing a determination on the ODF’s report suggests that in accepting the report, the Minister exercised a power which withheld from the applicant a benefit. I find, therefore, that the applicant is entitled to a statement of reasons for the decision of the Minister to accept the ODF’s report.

In the circumstances, I consider that the most appropriate course of action to take is to annul the decision of the Department in respect of the request and to direct it to consider afresh the application for the statement of reasons sought.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the Department's decision. I direct it to consider afresh the application for a statement of reasons for the Minister’s decision to accept a report issued by the ODF in connection with a complaint made by the applicant.

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

 

Stephen Rafferty
Senior Investigator