Whether the statement of reasons supplied by the Department to the applicant as to why the Minister of Defence (the Minister) had accepted a report issued by the Ombudsman for the Defence Forces (the ODF) in relation to the applicant's complaint was sufficient for the purposes of section 10 of the FOI Act

14 July 2022

Background

By way of background, the applicant is a former member of the Defence Forces, who made two complaints under the Defence Forces' internal Redress of Wrongs procedure in 2015, while he was in service. Neither complaint was upheld, although I understand that attempts at mediation were made between the parties involved. In any event, the applicant subsequently referred the matter to the ODF for review. The ODF completed his investigation and submitted his final report to the Minister for his consideration in February 2020. The Minister issued a determination accepting the report on 19 November 2020.

This review arises from a number of previous applications for review made by the applicant to this Office concerning the same matters. In summary, this matter came before this Office as follows:

Case OIC-103801-N2M6Y8

On 28 December 2020, the applicant requested a statement of reasons from the Department in relation to the Minister's acceptance of the ODF's report which he considered to condone breaches of Defence Forces Regulations, as well as access to related records. In its decision, the Department solely provided access to records. The applicant requested an internal review and later applied to this Office for a review of the Department's internal review decision, which had essentially affirmed its original decision. Following a review, the Senior Investigator issued a decision on 17 June 2021 (OIC CaseOIC-103801-N2M6Y8, Mr T and Department of Defence, available on our website atwww.oic.ie). He found that the Department was not justified in refusing to provide the applicant with a statement of reasons and directed it to carry out a fresh decision making process on his application.

On 20 August 2021, the applicant made a request for an internal review to the Department on the basis of a deemed refusal, as it appeared that the Department had not made a new decision on his application. However, in its response, the Department stated that it had issued a new, first instance decision to the applicant by email on 15 July 2021. It forwarded a copy of its 15 July statement of reasons to the applicant on receipt of his internal review request. Upon receipt of the statement, the applicant made a second internal review request to the Department. It declined to accept his request on the basis that it was outside the time limit set out in the FOI Act. However, both this Office and the Department informed the applicant that it was open to him to submit a new application for a statement of reasons if he wished, which could go through the process of application, internal review and application for a review to this Office if he was unhappy with the Department's decision(s).

Case No OIC-114614-V7P1T4

Accordingly, on 10 September 2021, the applicant once again sought a statement of reasons from the Department in respect of the decision of the Minister to accept the report issued by the ODF given that, in his view, the report condoned breaches of certain Defence Forces Regulations. In a decision dated 24 September 2021, the Department stated that it was part-granting the applicant's application. It provided a copy of its earlier statement of reasons as well as a schedule of records and six related records to the applicant, subject to the redaction of certain information on the basis of sections 29(1)(a), 35(1)(b) and 37(1) of the FOI Act.

On 27 September 2021, the applicant applied for an internal review of the Department's decision on the basis that the information provided was not what he sought. He again referred to the ODF's report as condoning acting outside Defence Forces Regulations. On 28 September 2021, the Department asked the applicant to clarify which aspect of its decision he was unhappy with. The applicant's reply indicated that he was unhappy with certain aspects of the ODF's report and again stated that he sought a statement of reasons as to why the Minister had accepted a report which -�condoned breeches-� of the relevant regulations.

On 18 October 2021, the applicant applied to this Office for a review of the Department's decision on the basis of a deemed refusal, as it had not issued a decision on his internal review request. Following correspondence from this Office, the Department provided the applicant with a statement of its effective position on his internal review request on 15 November 2021 and the case was closed.

Case No OIC-117125-Z3L2N1(the current case under review)

On 8 December 2021, the applicant applied to this Office for a review of the Department's effective position. Its position was that the reasons the Minister accepted the ODF's report had been set out in the statement of reasons, which it had sent to the applicant -�on numerous occasions-�. The Department also stated that it had not processed his request for internal review as it would -�not have resulted in any further information or reasons-� other than those already provided.

During the course of this review, this Office's Investigator contacted the applicant by telephone and by email and outlined her view that the statement of reasons provided was adequate for the purposes of the FOI Act. He was invited to comment but has not done so to date.

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 applicant's comments in his application for review and to the submissions made by the FOI body in support of its decision. I have also had regard to the statement of reasons provided by the Department, as well as the content of the records supplied to the applicant alongside the statement. 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 Department has provided an adequate statements of reasons to the applicant as required by section 10 of the FOI Act.

Analysis and Findings

Section 10

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. It is not in dispute at this point that the applicant was entitled to a statement of reasons for the Minister's decision to accept the ODF's report. Indeed, the Department provided him with such a statement. However, the applicant is not satisfied with the statement of reasons provided. My role is confined, therefore, to deciding whether the Department has complied with the requirements of section 10 of the FOI Act i.e. is the statement given adequate?

This Office takes the view that a statement of reasons 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. However, it does not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision. If a public body adequately explains why it acted as it did, that is the end of the matter in terms of the obligations on the body under section 10 of the FOI Act. It is also relevant to note that, where an FOI body has a particular practice that it follows in taking decisions in a particular set of circumstances, and where that practice has been followed then, normally, I do not believe that there should be any further need to enquire into the thought processes of the decision maker. 

It is important to note that section 10 is not concerned with the appropriateness, or otherwise, of administrative actions taken by public bodies, nor does the Commissioner have a role in examining such matters. Section 10 is solely concerned with providing the 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. Crucially, this Office has no role in determining whether the decision or act of the FOI body was justified. It is sufficient, for the purpose of compliance with section 10, that the body adequately explains why it acted as it did.

The statement of reasons provided

The following records were provided to the applicant by the Department as well as a statement of reasons:

1. a copy of the ODF's Report
2. a copy of the Chief of Staff's Response to the ODF
3. a copy of an internal document submitting a number of ODF reports to the Minister for his consideration
4. a table summarising the five ODF reports submitted to the Minister
5. a copy of the Minister's letter to the ODF accepting the report
6. a copy of the Minister's letter to the Chief of Staff accepting the ODF's report

The statement of reasons provided to the applicant stated that a copy of the ODF's final report was submitted to the Minister for consideration and final determination. Essentially, the Department stated that the Minster decided to accept the report on the basis that:

• he was satisfied that the Defence Forces' internal redress procedures had been appropriately exhausted prior to the ODF's investigation,

• he was satisfied that the ODF, who has full independence and autonomy in the discharge of his statutory functions, had appropriately exercised his discretion, and had conducted a full, fair and objective investigation, and
• the Chief of Staff did not uphold the original internal complaints and had also accepted the findings of the ODF's investigation without any recommendations of his own.

During the course of the review, the Department clarified the process involved in the Minister's consideration of the ODF's reports in these circumstances generally. It stated that the steps taken by the Department in relation to the applicant's case and the other four cases which had been submitted to the Minister for his consideration at the same time was the usual procedure it followed in such cases. The Department confirmed that, generally speaking, where the following circumstances apply, that it would be rare for the Minister to question or to refuse to accept the ODF's report:

• internal complaints procedures have been exhausted (where appropriate), and
• the ODF has carried out his own independent and autonomous investigation into the matters and issued a report, and
• no recommendations and/or changes are required to HR practices, procedures or regulations on foot of the report, and
• the Chief of Staff has accepted the ODF's recommendations and does not identify any actions required or make any recommendations of his own which require any actions on foot of the report.

The Department also identified the following criteria as being relevant to the Minister's decision to accept the ODF's report:

• the independence and autonomy of the ODF in the discharge of his functions
• particularly in relation to section 4(1) of the Ombudsman (Defence Forces) Act 2004,
• the Defence Forces' internal Redress of Wrongs procedures
• the assessment and opinion of the Chief of Staff
• the practice normally followed in relation to cases where no wrong has been determined and no recommendations made

In his internal review request in this case, the applicant stated that he had -�specifically sought a statement of reasons for the Minister of Defence's decision-� to accept the ODF's report which he believed -�condoned the acting outside the stated Defence Forces Regulations-�. It is clear that the applicant is not satisfied with the ODF's report and findings in relation to his complaint. It is also evident that he is not satisfied with the Minister's acceptance of that report. In its submissions to this Office, the Department stated that the applicant's FOI request, which included his -�subjective view-� that the report condoned breaches of certain Defence Forces Regulations, could be considered to be an attempt to use the FOI process as an alternative appeal mechanism in relation to his original complaint.

I note that this Office's Investigator informed the applicant during the review of her view that the relevant act or decision in this case is the Minister's decision to accept the ODF's report. I agree. I am satisfied that the substantive decision in this case was the Minister's approval of the relevant report.

It is important to note that while the applicant believes that the Minister's act or decision to accept the report effectively condoned a breach of regulations, this is not what is under review. This Office has no remit to decide whether a breach of regulations occurred in relation to these matters. As noted above, this Office has 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.

Having carefully considered the circumstances of this case, I am satisfied that the Department has provided an adequate statement of reasons to the applicant as to why the Minister accepted the ODF's report. Accordingly, I find that the Department's statement was sufficient for the purposes of section 10 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision. I find that the statement of reasons provided was adequate for the purposes of section 10 of the FOI Act.

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.
 

Deirdre McGoldrick
Senior Investigator