Whether the Defence Forces was justified in refusing, under section 37(3) of the FOI Act, an application for a statement of the reasons why the applicant was referred to a consultant psychiatrist and for records relating to the referral

11 April 2022

Background

On 10 November 2021, the applicant submitted a request to the Defence Forces for

(i) The reasons and decisions why a named doctor referred the applicant to the Defence Forces Consultant Psychiatrist
(ii) Any information/emails or handwritten notes relating to him on this matter

On 7 December 2021, the Defence Forces purported to part grant the request. It released an email thread with some information redacted under section 37(1) of the Act. However, it did not provide a statement of reasons. The email thread released was created after receipt of the applicant's FOI request and is a copy of internal correspondence between the Air Corp Front Line Decision Maker (FLDM) and headquarters FOI Unit discussing the FOI request. The information redacted is a personal mobile number belonging to a staff member.

On 23 December 2021, the applicant sought an internal review of that decision. On 24 January 2022, the Defence Forces varied its decision and purported to grant the request. It said arrangements would be made for the applicant to be furnished with the information sought in accordance with section 37(4) of the Act. However, no information or records were provided to the applicant. On 22 February 2022, the applicant sought a review by this Office of the decision of the Defence Forces.

Our review of the decision of the Defence Forces in respect of the application for a statement of reasons was processed under file reference OIC-119911, while our review of the decision on the request for records was processed under file reference OIC-119546. Having regard to the submissions made by the Defence Forces on the cases, I have decided to issue a composite decision covering both matters.

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 parties as outlined above and to the correspondence between this Office and both parties on the matter.

Scope of Review

This review is concerned with whether the Defence Forces was justified in refusing to provide, under section 37(3) of the FOI Act, a statement of the reasons why the applicant was referred to a consultant psychiatrist and related records.

Preliminary Matters

In his application to this Office, the applicant raised concerns about the manner of his treatment by the Defence Forces doctor in question. As the applicant is well aware at this stage given the significant number of reviews he has previously sought from 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. As he is also aware, there is an internal complaints process within the Defence Forces for submitting a Redress of Wrongs which can be appealed to the Ombudsman for the Defence Forces.

Analysis and Findings

Request for Records

The applicant sought access to records relating to him on the matter of his referral to the Defence Forces Consultant Psychiatrist. The records released were created after the request was made and as such, they fall outside the scope of the request. Indeed, no relevant records were identified by the Defence Forces at any stage during the processing of the applicant's request or in the course of our review.

In her request for submissions, the Investigating Officer informed the Defence Forces of her opinion that it did appear to have carried out any searches to locate relevant records and that the case may have to be remitted for consideration afresh. She invited the Defence Forces to address those points if her view was incorrect. She also invited the Defence Forces to make submissions on the applicability of section 37(3) to the request for records.

In its submissions, the Defence Forces said it consulted with the named doctor who said that the applicant was informed in detail why he was being referred to the psychiatrist. He said the reasons are recorded in the medical notes which he understands to have been released on foot of a previous request. He said that he would have to divulge medically confidential information if he was to get into the precise medical reasons for the referral and he said that if the applicant wants further information on this, it would be best shared directly with him through a follow up medical consultation. The Defence Forces added that that the Defence Forces doctor was not willing to divulge the information due to doctor/patient confidentiality but would forward the information to a GP of the applicant's choosing in compliance with section 37(3).

The position of the Defence Forces appears to be that if its doctor chooses not to provide information pursuant to section 37(3), it will not look beyond that decision due to doctor/patient confidentiality. It also appears to be suggesting that it cannot ask the doctor to let any other staff within the Defence Forces have access to the information sought in order to process the request as to do so would breach that doctor/patient confidentiality. If that is the case, then it seems to me that the doctor could simply have released the relevant records, if any, directly to the applicant.

Section 37(3) of the FOI Act provides that a public body may refuse a request for records of a medical or psychiatric nature relating to the requester if it considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. Where it refuses a request under subsection (3), it must offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify (subsection (4) refers).

The Defence Forces presented no argument whatsoever as to why it deems section 37(3) to apply in this case. Not only did it fail to explain why it considers that disclosure of information in the records sought might be prejudicial to the applicant's physical or mental health, well-being or emotional condition, but it also failed to even clarify what relevant records, if any, it holds that come within the scope of his request.

I also note the doctor's assertion that certain relevant records were released on foot of a previous request. If that was the case, the Defence Forces could have sought to refuse the request under section 15(1)(i) of the Act but it did not do so. As no records have been made available to this Office, I am simply not in a position to consider the validity of the doctor's assertions.

In the circumstances I have no option but to annul the decision of the Defence Forces to refuse the applicant's request for records under section 37(3). However, I do not consider it appropriate to simply direct the release of all relevant records as I have no knowledge whatsoever of what relevant records, if any, exist or what they might contain. In the circumstances, I consider that the most appropriate course of action to take is to annul the decision of the Defence Forces to refuse the applicant's request for records relating to him on the matter of his referral to the Defence Forces Consultant Psychiatrist and to direct it conduct a fresh decision making process on the request.

Statement of reasons

Section 10(1) 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. Under subsection (13), an act of a body is deemed to include a decision of the body. Subsection 10 provides that an application under section 10 must be expressed to be such an application. However, subsection (11) provides that a public body must assist an individual in the preparation of an application where it is not explicitly made under section 10.

In her invitation to the Defence Forces to make a submission on the case, the Investigating Officer informed the Defence Forces of her view that the applicant's letter of 10 November 2021 comprised an application for a statement of reasons pursuant to section 10 of the Act. She invited the Defence Forces to make submissions, as appropriate, under sections 10, 37(3) and any other relevant provisions of the Act.

In its submissions the Defence Forces made no substantive submission other than to say that the doctor was not willing to divulge information due to doctor/patient confidentiality but would forward the information to a GP of the applicant's choosing in compliance with section 37(3). It stated the following:

-�If a doctor deems it necessary to refuse such information and will only pass this information to a GP of the requestors choosing, we will uphold this decision. The FOI Office do not know the requestors medical history whereas the doctor in question does. This information could be detrimental to a person's mental health and we as a body would not risk this. Therefore, no records were provided to this Office by [the named doctor] in relation to this FOI-�.

In a follow up phone call with the Defence Forces, the FOI Officer confirmed that the doctor was unwilling to forward the information internally and therefore it could not provide this Office with a copy of the statement of reasons.

The position of the Defence Forces in this matter is wholly unacceptable. Responsibility for providing a statement of reasons rests with the Defence Forces as a public body. If the doctor had concerns about providing the FOI Office with a statement of reasons on the ground that to do so would breach doctor/patient confidentiality, he could have simply prepared the statement and issued it directly to the applicant.

On the matter of the reference to section 37(3), that section is concerned with the refusal of access to records and does not, of itself, provide a valid basis for refusing to provide a statement of reasons. Subsection (2) of section 10 provides that nothing in the section shall be construed as requiring the giving to a person of information contained in a record which would fall to be refused as an exempt record. Accordingly, had the Defence Forces been in a position to show that by providing a statement it would have had to disclose information from records that are exempt under section 37(3), it would have been entitled to refuse to provide a statement under section 10(2). However, as I have found above, the Defence Forced has not justified its refusal of the relevant records under section 37(3).

Accordingly, I find that the Defence Forces was not justified in refusing to provide the applicant with a statement of the reasons why the applicant was referred to a consultant psychiatrist. I am not in a position to consider whether the provision of a statement would require the giving to the applicant of information contained in a record which would fall to be refused as an exempt record, given that the Defence Forces has not identified any relevant records. Accordingly, I consider that the most appropriate course of action to take is to annul the decision of the Defence Forces to refuse the application for a statement of reasons and to direct it to consider that application afresh.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Defence Forces in its entirety. I direct it to conduct a fresh decision making process in respect of both the application, under section 10, for a statement of the reasons why the applicant was referred to a consultant psychiatrist, and the request, under section 12, for any information/emails or handwritten notes relating to him on that matter.

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