Whether the Defence Forces has complied with the requirements of section 10 of the Act in response to the application for a statement of reasons as why a named Comdt. decided that the applicant should be reviewed by the Comdt. before taking any further sick leave

28 February 2022

Background

The applicant in this case is a member of the Defence Forces. On 1 June 2021, he applied, under section 10 of the FOI Act, for a statement of reasons under the FOI Act as to why a named Comdt. informed a colleague that further sick leave for the applicant should not be accepted unless reviewed by the Comdt. and the regulatory basis for same. On 15 July 2021, the Defence Forces issued a brief statement and cited an extract from Defence Forces Regulations (DFR).

On 5 August 2021, the applicant sought an internal review of the decision of the Defence Forces. He made no comment on the statement provided, other than to say that the information provided was not the information sought.

On 6 October 2022, the applicant sought a review by this Office of the deemed refusal of his application for internal review as the Defence Forces did not issue an internal review decision within the required time-frame. On 22 October 2021, the Defence Forces issued its effective position wherein it provided additional details.

On 15 December 2021, the applicant sought a review by this Office of the decision of the Defence Forces. He did not, however, indicate why he was not satisfied with the response of the Defence Forces.

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 Defence Forces and the applicant, and to the communications between this Office and both the applicant and the Defence Forces on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Defence Forces has complied with the requirements of section 10 in this case.

Preliminary Matters                                                                       

As the applicant is aware from his previous engagements with 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. Neither does this our remit extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought.

Analysis and Findings

Section 10 of the FOI Act 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. This Office considers that a statement should be intelligible and adequate having regard to the particular circumstances of the case. It should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However, a statement should not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision.

It seems to me that the key issue in this case is whether the Defence Forces has adequately explained why the named Comdt. had decided that further sick leave for the applicant should not be accepted unless reviewed by him. In its original decision of 15 July 2021, the Defence Forces explained that the named Comdt. was concerned about the applicant's sick leave pattern. In its letter of 22 October 2021, it explained that the named Comdt. noted the applicant's sick leave pattern and requested from the applicant's unit that further sick leave would not be granted until he reviewed the applicant. It argued that the Comdt.'s position was supported by paragraphs 29 and 34 of DFR A12.

In his communications with this Office, the applicant argued that the decision was not supported by any Regulation. He suggested the decision was breach of the patient charter of the Defence Forces. He said he was entitled to attend whatever Doctor he wished under the patient charter. It seems to me that the applicant is not arguing that he has not been informed why the Defence Forces acted as it did. Rather he appears to be challenging the appropriateness of the reason given. He is essentially arguing that the Defence Forces is wrong to suggest that it acted in accordance with the Regulations.

As I have outlined above, the applicant has previously been made aware of the fact that our remit does not extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought. Section 10 is concerned with the provision of reasons for the act or decision and any findings on any material issues of fact made for the purposes of the act or decision concerned. If the body explains why it acted as it did, this Office has no further role in the matter. In this case, I am satisfied that the Defence Forces has adequately explained why the Comdt. decided that that further sick leave for the applicant should not be accepted unless reviewed by him, i.e. because he was concerned about the applicant's sick leave pattern. Whether that decision was in accordance with the relevant Regulation or not is not a matter for this Office to determine. In conclusion, therefore, I find that the Defence Forces has complied with the requirements of section 10 in relation to the application for the statement of reasons sought.

I should add that I gave some thought to discontinuing the review in this case under section 22(9)(a)(i) of the Act. That section provides that I may discontinue a review where I consider that the application for review is frivolous or vexatious.

As its long title indicates, the purpose of the FOI Act is to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of FOI bodies. However, while the FOI Act rightly demands that FOI bodies meet very high standards in dealing with requests, it also assumes reasonable behaviour on the part of requesters.

The applicant has made many requests to the Defence Forces in the past number of years. It seems to me that his use of FOI has become an integral part of his pursuit of what are essentially industrial relations grievances with the Defence Forces as his employer. While it is entirely legitimate that a requester might avail of the FOI Act to obtain access to relevant information in pursuit of such a grievance, it is not legitimate to essentially use the FOI mechanism itself for tactical purposes in pursuit of that grievance, e.g. as a mechanism for continually challenging the actions of an employer in its dealings with the requester without having due regard to the administrative burden that the making of numerous requests may have on the body. It is also not appropriate that the applicant would continue to use section 10 to challenge the appropriateness of decisions or actions taken by the Defence Forces in circumstances where the limits of our role and remit have previously been explained to him.

I decided, on balance, not to discontinue the review but rather, to use this decision to highlight my concerns about his pattern of use of the FOI Act and to inform him that further similar applications for review will be carefully considered in light of those concerns.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces in this case. I find that it has complied with the provisions of section 10 of the Act in response to the application for the statement of reasons sought.

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