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Whether the Defence Forces was justified in its decision to refuse to provide the applicant with a statement under section 18 of the FOI Act of the reasons for his unsuccessful application for enlistment

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In August 2014, the applicant sought from the Defence Forces a statement of reasons under section 18 of the FOI Act as to "how [it] came to the decision on [his] unsuccessful candidacy" in relation to a recruitment competition. On 11 September 2014, the Defence Forces issued its decision, refusing the applicant's request. It appears that the applicant's request was incorrectly treated as a request for records as opposed to a request for a statement of reasons, as the Defence Forces cited section 26(1)(a) of the FOI Act to refuse access to a certain record.

The applicant sought an internal review of this decision by way of letter dated 17 September 2014. The internal reviewer issued his decision on 7 October 2014, upholding the initial decision. On 29 January 2014, the applicant sought a review by this Office of the Defence Forces' decision.

I note that, in correspondence with the applicant, Mr Niall Mulligan of this Office set out his view in relation to the case and offered the applicant an opportunity to make submissions. The applicant has not furnished any submission or further correspondence to this Office. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to the Defence Forces' decisions on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Defence Forces. I have also had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matter

In response to the applicant's request, the Defence Forces decided to refuse access to a record under section 26(1)(a) of the FOI Act. However, this approach was clearly inappropriate, in circumstances where the applicant made his request under section 18 of the FOI Act. While it was open to me to annul the decision on this basis alone and to remit the matter to the Defence Forces for fresh consideration, I have decided, in the particular circumstances of the case, to deal with the key issue of whether the applicant is entitled to the statement of reasons sought.

Scope of the Review

This review is concerned solely with the question of whether the applicant is entitled to a statement of reasons as to "how [it] came to the decision on [his] unsuccessful candidacy" in relation to a recruitment competition.

Analysis and Findings

In the course of this review, Mr Mulligan informed the Defence Forces and the applicant of his view that section 18(2) of the FOI Act may apply, given the general tenor of the decision and submissions received from the Defence Forces. I am satisfied that this is an appropriate approach to the case.

Section 18 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, as section 18(2)(a) qualifies it to the extent that reasons need not be given where to do so would involve the giving of information contained in an exempt record.

I must point out at this stage that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record or information which, if it were included in a record, would cause the record to be an exempt record. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that, in the present case, the extent of the reasons which I can give is quite limited.

Having carefully considered the matter, and in particular the Defence Forces' submissions, I am satisfied that to provide the applicant with the statement of reasons sought would require the giving to him of information contained in an exempt record. I therefore find that the Defence Forces was entitled to refuse to provide the applicant with a statement of reasons under section 18(2)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Defence Forces. I find that the applicant was not entitled to the statement of reasons sought by virtue of the operation of section 18(2)(a) of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator