Information Commissioner orders release of Department of Defence documents on accidental publication of whistleblower report containing information that was meant to be redacted

The Information Commissioner (OIC) has found in favour of Right to Know in a case taken over access to records about the accidental release of an unredacted report on a protected disclosure.

A protected disclosure was made in March 2021 about an event held in McKee Barracks in Dublin, which alleged a breach of COVID-19 regulations, and the physical and sexual assault of two female Defence Forces personnel.

As a result, senior counsel Hugh Mohan was asked to carry out an investigation, the findings of which subsequently became known as the Mohan report.

When it was finalised in March of this year, the Department of Defence published a version of the report that contained details which were supposed to be redacted.

Right to Know sought a copy of records relating to this but both after initial request and internal review, the Department of Defence refused release saying the records related to a protected disclosure.

The case then took on an added significance because if the Department’s position had been correct, any record, no matter how distantly linked to the original protected disclosure, would automatically be exempt from release under FOI.

Taken to its conclusion, this could have meant people could not even inquire about how many protected disclosures were made to a public body.

The department’s position was described as: “In further submissions, the Department said that the records in question only exist because a protected disclosure was made.

“It said that the records sought relate to a report made under the Protected Disclosures Act though it also acknowledged that ‘it is apparent that they are somewhat distant from the actual disclosure made’. It said that section 42(ja) does not provide for any ‘degree of proximity’ between the relevant records and the report.”

The Department also claimed having to deal with any records relating to a protected disclosure under FOI could put them at “considerable risk” if a mistake was made.

The Information Commissioner did not agree sand said FOI often carried such risks for decision makers about what to make public or not.

The investigator wrote: “I am not satisfied that there is a sufficiently substantial link between the original protected disclosure and administrative records relating to the publication of an incorrectly redacted version of a subsequent report.

“I am not satisfied that the content of the specific records sought is such that they could be said to relate to a protected disclosure.”

You can read a full copy of the decision below: