Decision
Mr Y and Defence Forces
From Office of the Information Commissioner (OIC)
Case number: OIC-154189-B6M9B7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154189-B6M9B7
Published on
Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the FOI Act, to a Garda statement made by the applicant on the ground that the record cannot be found after all reasonable steps to locate it have been taken
2 April 2025
In a request dated 28 August 2024, the applicant sought a copy of a 10-page statement made by him to An Garda Síochána (AGS) on a specified date in 2011 (hereafter ‘the Garda statement’), that he claims had subsequently been provided to the Defence Forces for investigation. He also sought a copy of his consent for AGS to give this statement and its exhibits to the military authorities as directed by the Attorney General in 2012 and a letter from an Assistant Garda Commissioner stating his complaint was handed over to the military authorities for a full military investigation. The applicant also requested records of actions taken by the Military Police authorities on foot of a statement he made to the military police in 2010. The applicant cited the Military Police, Provost Marshall and Chief of Staff Office as potential locations for the records.
On 17 September 2024, the Defence Forces part-granted the applicant’s request. It granted access to a small number of records in full, some in part, and refused access to a copy of the applicant’s Garda statement under section 15(1)(a) of the FOI Act. The applicant sought an internal review on the ground that the Defence Forces should hold a copy of his Garda statement, following which the Defence Forces affirmed its refusal under section 15(1)(a). The Defence Forces also refused the request for the statement under section 15(1)(i) of the FOI Act on the ground that the applicant had said in a phone call with its FOI Office that he had received a copy of the record from AGS. On 3 December 2024, the applicant applied to this Office for a review of the Defence Forces’s decision.
During the course of the review, the Investigating Officer provided the applicant with details of the submissions of the Defence Forces wherein it outlined the searches it had conducted and its reasons for concluding that the relevant record could not be found. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
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 referred to above and to the submissions made to this Office by both parties. I have decided to conclude this review by way of a formal, binding decision.
The applicant considers that the Defence Forces ought to hold a copy of the statement he made to AGS in 2011 as part of a military investigation into the subject of his statement. While the Defence Forces also refused access to the Garda statement under section 15(1)(i) of the FOI Act on the basis that the applicant already has a copy of the record, in my view section 15(1)(a) of the Act is of more relevance in this case.
Accordingly, this review is solely concerned with whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to the Garda statement sought by the applicant on the ground that no such record exists or can be found.
Before I address the substantive issues arising in this case, I wish to address a number of preliminary matters.
I note that the applicant indicated in his correspondence both with the Defence Forces and with this Office that the record sought should be held by the Defence Forces and that he was of the view that the Defence Forces was to conduct an investigation upon receipt of the relevant record, and it had failed to do so. The applicant also said that he was of the view that the Defence Forces had deliberately lost or disposed of the relevant record.
First, I wish to note that section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. As such, this Office cannot have regard to the reasons given by the applicant for seeking access to the record concerned in considering whether the Defence Forces was justified in refusing the request.
Second, I wish to note that the remit of this Office does not extend to examining the manner in which an FOI body performs its functions generally, to investigating complaints against an FOI body, or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As I have outlined above, the Defence Forces provided this Office with submissions containing its reasons for concluding that the relevant record cannot be found in this case, the details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have regard to the them for the purposes of this review.
In summary, the position of the Defence Forces is that the Garda statement sought does not exist or cannot be found, as it conducted searches in numerous areas based on the information and documentation provided by the applicant and no records were located on foot of these searches.
The Defence Forces stated that all files received to the Office of the Provost Marshal (PM) are stored in a secure building in a named location, with all associated security features. It said that only PM staff are permitted to gain access to any documentation held by this office. The Defence Forces said that documentation associated with an incident or individual are given specific folders and are filed and maintained in accordance with the security arrangements. It said that all future correspondence or any additional information received pertaining to an incident or individual is then kept within this associated folder for continuity and record. The Defence Forces said that after a set period of years, files are routinely archived and transported to the Defence Forces Archives by PM Office Staff. It said that documentation which is archived is associated with the year in which the file was opened/initiated. It also said that the PM will not destroy the type of documentation sought by the applicant.
In its submissions, the Defence Forces outlined a number of areas that it searched for relevant records, including the Military Police, the Military Archives, the Office of Deputy Chief of Staff and its Legal Branch. It identified a number of electronic and hardcopy storage locations within these areas, including specified facilities and storage boxes, details of which were provided to the applicant. The Defence Forces said that it searched the accounts of a number of specified personnel from 2010 to 2012 with the search terms “[applicant’s surname]”, “Complaint”, “Statement”, “AGS”, “UNIFIL Deaths”, “[identification number]”, including the then Director of Legal Services and the then Director of Military Police. It said that it also checked the email accounts of three named members of staff as they were cc’d into an email from the Director of Legal Services during the relevant time period.
In its submissions, the Defence Forces said that it can see evidence of the statement being instructed to be handed over to the Defence Forces by the Assistant Garda Commissioner and An Garda Síochána, but it cannot locate the statement itself. It said it does not know if it was emailed or hand delivered. The Defence Forces said it also spoke with three members of staff to see if they had any recollection of this statement being handed over but they did not. The Defence Forces said that after exhausting all locations the statement cannot be found.
In relation to the document in question, the Defence Forces said that the Military Police’s office also could not provide any further information pertaining to its whereabouts, nor confirm that it was received by the Military Police. It said that in relation to circumstances in which a document is transferred to another Defence Forces entity from the Military Police office, this will ordinarily be done by hand-delivering a copy of the document ensuring that a signature on a receipt is captured. It said the original document/record will be retained by the office, unless it is required during a court proceeding in which the original document/record is required to be entered into evidence. It said that in this circumstance, a copy will be retained in the office until the proceedings have completed.
The Defence Forces said that the Military Police’s office has subsumed the Military Police archives of a specified relevant Brigade (which it said ceased to exist following reorganisation of the Defence Forces in 2012), and it was asked to search its records on this basis.
The Defence Forces said during its initial searches that it consulted with the Military Police only as it thought the 10-page statement would only be held with them due to its nature and being handed over to the military authorities by AGS. It said that, during the internal review stage, it contacted several other areas within the Defence Forces such as those outlined above, individual staff members, etc., and it also asked the Military Police to conduct another fresh search again.
It said that, based on the searches conducted and the consultation with the relevant staff as outlined above, it had concluded that the record could not be found. The Defence Forces said it understands this is frustrating for the applicant. Furthermore, the Defences Forces said that although it does not have physical evidence of the statement being held by the applicant, that during one of many phone calls its FOI Office had with the applicant during the course of processing his FOI request, the applicant disclosed that he obtained a copy of the statement from An Garda Síochána in August/September of 2024.
In his submissions to this Office, the applicant said that the military police were given his Garda statement and exhibits on the direction of the Attorney General and that he had records showing that AGS had stated that the complaint should be handed over to the military authorities. He said that his statement appeared to have been passed from AGS to the Department of Justice, who then passed it to the Defence Forces. He said that the letter from AGS was addressed to the Department of Justice, stating that it had been determined that the applicant’s complaint was a matter for the military authorities, and enclosed a copy of the applicant’s complaint (the Garda statement) for the Department of Justice to formally communicate to the military authorities.
He said that he essentially wants the subject matter of his statement to AGS to be investigated properly and therefore he is concerned that the Defence Forces do not appear to have this statement and/or have potentially lost it. He said he was of the view that the Defence Forces had disposed of the relevant records deliberately.
My Analysis
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist, or are known to have existed in the past, have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to exist.
The Defence Forces said that the type of records sought by the applicant would not be destroyed. While the applicant contends that records may have been disposed of deliberately, he has provided no evidence to support this allegation. In regards to the applicant’s comments about the Defence Forces not fully investigating the subject of his statement to AGS, as noted above this Office has no role in examining how FOI body perform their functions generally, or to investigate complaints about an FOI body. In this case, this means that we can only examine whether all reasonable searches have been conducted for the relevant record.
While I appreciate that the applicant is disappointed that the Defence Forces cannot locate the record in question, our role is confined to reviewing the decision taken by the Defence Forces on the applicant’s request. Having regard to the submissions before this Office, and in the absence of evidence to suggest that further relevant searches ought to be undertaken, I am satisfied that the Defence Forces has taken all reasonable steps to ascertain the whereabouts of the record sought. Accordingly, I find that the Defence Forces was justified in refusing access to the Garda statement requested by the applicant under section 15(1)(a) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse access to the Garda statement under section 15(1)(a) of the FOI Act.
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.
Richard Crowley
Investigator