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 recommendation for de-selection from overseas service.”

On the question of whether release of the records could reasonably be expected to have a significant, adverse effect on the performance of its functions, the Defence Forces referred to significant adverse effect on the performance of its managerial functions, in particular the engagements that must be undertaken between decision makers, staff officers and officers in command appointments in the discharge of their roles as part of deliberative cycles. It said that the adverse effect on the performance of that function which can reasonably be expected “arises in consideration of the inability for decision makers to engage and communicate with staff officers and officers in command appointments as part of a deliberative cycle with the scope for discussion and the degree of confidentiality required in order to discharge their functions”.

In essence, it is the position of the Defence Forces that the release of the records at issue could reasonably be expected to have a significant, adverse effect on its ability to engage and communicate with staff officers and officers in command appointments as part of a deliberative cycle in its consideration of a HR matter involving the management of personnel. Presumably its argument is that those engagements and communications would be impaired in the absence of an understanding that such engagements and communications would be carried out confidentially.

It seems to me that this argument is, in essence, an argument for the protection of records relating to such deliberations as a class, regardless of the specific contents of any such records. I find it difficult to accept that staff officers and officers in command appointments could reasonably expect their engagements and communications on such matters to remain confidential in all cases, particularly in light of the fact that the principles of natural justices would require that the individual in question be given an opportunity to respond to any allegations that might involve some form of disciplinary action.

In this case, the Defence Forces has not, in my view, identified any specific information in the records whose release could reasonably be expected to give rise to the harms identified. For example, it has not identified any information in the records whose release could reasonably be expected to result in staff officers and officers in command appointments refusing to engage in such deliberations in the future.

I find that the Defence Forces has not shown how the release of the records at issue could reasonably be expected to have a significant, adverse effect on the performance by the Defence Forces of any of its functions relating to management, nor is it apparent to me as to how such harm might arise. In these circumstances, and in the absence of arguments based on the contents of each particular record, I do not consider that Defence Forces has made out its case for the applicability of the exemption provided for by section 30(1)(b) of the Act. I find that the Defence Forces was not justified in refusing release of the records under section 30(1)(b).

31(1)(a) Legal Professional Privilege- Records 7, 10, and 18

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

In submissions to this Office, the Defence Forces argued that the records at issue attract legal professional privilege.  It said that the three records amount to confidential communications for the purpose of obtaining and/or giving legal advice. It outlined that in each record the legal adviser from whom legal advice is requested is a legal officer in a named Brigade.

Record 7 is an email chain between Defence Forces staff members which could be regarded as a continuum of correspondence. However, there is only one part that discloses legal advice and this appears to be the same email which was released to the applicant as part of record 6. As such, it appears to me that any privilege that might have attached to record 7 has been waived by the release of record 6.

Record 18 appears to be an exchange of correspondence simply to establish if the Legal Unit holds relevant information concerning the Court Martial. I cannot see how the communication could be classified as having been made for the purpose of obtaining and/or giving legal advice.

I accept that record 10 is an email for the purpose of seeking legal advice and as such I find that the Defence Forces was justified in refusing access to this record under section 31(1)(a) of the FOI Act. 

I am not satisfied that records 7 and 18 comprise confidential communications made between the Defence Forces and its internal legal advisers for the purposes of obtaining and/or giving legal advice or that they form part of a continuum of correspondence regarding the request for advice. I find, therefore, that the Defence Forces was not justified in refusing access to these records under section 31(1)(a) of the FOI Act.

Section 37 Personal Information- Records 11, 12, 13, 14, 21, 23, 24, 26

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the applicant. The information redacted from the records at issue in this case comprises the names, personal identification numbers and both official and personal email addresses of Defence Forces staff members.

For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including “(iii) information relating to the employment or employment history of the individual”.

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph I of the definition provides that where the individual is or was a staff member, the definition does not exclude the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

In correspondence with this Defence Forces, the Investigating Officer drew the attention of the Defence Forces to the exclusion at Paragraph I and queried whether the redacted names were those of staff members and whether the names appeared during the normal functions of their duties. In its submissions to this Office, the Defence Forces confirmed that the redacted names were those of staff members. It agreed that the redacted information should have been released to the applicant. As such, I find that the exclusion applies and that the names where they appear within the staff member’s role, are not personal information within the meaning of the Act. I am satisfied that section 37 does not apply and that the redacted names should be released.

However, in record 24 on pages 1, 2 and 3, the names of Defence Forces staff members appear in the context of the disciplinary matter for which the applicant is currently on remand for court martial. I am of the opinion that the names appear in the context of what could not be described as within the functions of their roles. I find that this information is personal information and that section 37(1) applies.  

In relation to the ID numbers redacted in record 24, the Defence Forces outlined that it considers such information to be personal information regarding an individual’s employment history. It said that the ID numbers can be used to access an individual’s employment records and history. It said the individuals to whom the information belongs has not given their consent to the disclosure. I agree a staff member’s unique ID number is personal information and that section 37(1) applies.

I also note that records 8, 9, 15, 16 and 17 contain personal email addresses belonging to some Defence Forces staff members. I find that section 37(1) applies to such information. 

Section 37(2)

Section 37(2) provides that section 37(1) does not apply in certain circumstances. Having examined the records, I am satisfied that the circumstances identified at section 37(2) do not arise in this case.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I will therefore consider section 37(5)(a).

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

I cannot identify any relevant public interest in granting access to the relevant information to which I have found section 37(1) to apply that, on balance, outweighs the public interest in upholding the privacy rights of the individuals whose personal information would be disclosed by releasing the information. In the circumstances, I find that section 37(5)(a) does not apply.

I find, therefore, that the Defence Forces was justified in refusing access, under section 37(1) of the Act, to

• the information redacted from page 1, 2 and 3 of record 24,
• the ID numbers redacted form record 24, and
• the personal email addresses contained in record 8, 9, 15, 16 and 17

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Defence Forces in this case. I annul its decision to refuse access, under section 30(1)(b), to records 2, 3, 4, 5, 8, 9, 15, 16, 17. I direct the release of these records, with the exception of the personal email addresses of staff members contained in the records.  

While I affirm the decision of the Defence Forces decision to refuse access to record 10 under section 31(1)(a) of the FOI Act, I annul its decision to refuse access to records 7 and 18 and I direct release of these records.

I also direct the Defence Forces to release the staff information it redacted from records 11, 12, 13, 14, 21, 23, 24, 26, apart from staff member personal email address, staff ID numbers, and the information redacted from page 1, 2 and 3 of record 24.

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 eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator