Decision
Mr. X & The Defence Forces
From Office of the Information Commissioner (OIC)
Case number: OIC-159867-Y4N8L5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-159867-Y4N8L5
Published on
Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to a complaint made by the applicant on the grounds that no further records exist or can be found after all reasonable steps have been taken to locate them
16 October 2025
The applicant is a former member of the Defence Forces who is represented by his solicitor in this case. For the purpose of this review, references to the applicant includes references to the solicitor acting on his behalf.
On 5 March 2025, the applicant sought access to all complaints made against a named member of the Defence Forces which were mediated by the Personnel Support Service (a support service for Defence Force personnel). The scope of the request was subsequently clarified to all complaints made against the named individual by the applicant between 1 January 2020 to 31 December 2021 which were in any way mediated by the Personnel Support Service (PSS), to include all communications to and from two named staff of the PSS relating to the applicant and or made to a named Lieutenant Colonel and the Chief of Staff.
On 8 April 2025, the Defence Forces part-granted the applicant’s request. The Defence Forces identified five types of record it believed to be in scope of the request. Records 1 and 2 were email trails which were part-released with certain personal information redacted under section 37(1) of the FOI Act. Records 3 and 4 are described as text messages and PSS notes which were released to the applicant in full. The Defence Forces refused all complaints (described as Records No. 5) made against the named member of the Defence Forces by the applicant between January 2020 to December 2021 under section 15(1)(a) of the Act as no such records could be found. On 15 April 2025, the applicant requested an internal review of the Defence Forces’ decision. He contended there should be records of communications between the named staff of the PSS as well as a named Lieutenant Colonel and the Chief of Staff. He did not seek a review of the redactions made under section 37(1).
On 9 June 2025, the Defence Forces affirmed its original decision. On 18 June 2025, the applicant applied to this Office for a review of the Defence Forces’ decision. In his application, the applicant stated that he had not received records 4 or 5 at all, and that the part of the request relating to communications with the Lieutenant Colonel and the Chief of Staff was not addressed. The applicant stated that he has documentation from other complainants against the same member of the Defence Forces.
During the course of this review, the Defence Forces provided submissions to this Office outlining the details of the searches conducted for records relevant to the applicant’s request. The applicant was provided with details of those submissions and invited to make further submissions, 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 submissions made by the Defence Forces and the applicant. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Defence Forces was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records between 1 January 2020 to 31 December 2021 relating to a complaint made by the applicant about a named member of the Defence Forces.
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 their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search ” 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.
In its submissions to this Office, the Defence Forces said that the PSS is a service for all members of the Defence Forces who wish to seek guidance and support. It said the PSS is a confidential information, education, support and referral service, designed to give Defence Forces personnel access to information and services both from within and outside the military community. The Defence Forces said PSS staff will listen and provide advice best suited to personnel needs. It stated that the PSS do not administer complaints.
In regard to searches for relevant records, the Defence Forces stated that a search was completed by Brigade Headquarters (referred to as 2Bde HQ by the Defence Forces) of all physical files and electronic files held at HQ level. It said that 2Bde HQ also contacted the applicant’s Unit Commander from his previous unit who conducted a similar search on all physical and electronic file he held. The Defence Forces stated that 2Bde HQ also contacted the Military Archives who conducted a search of the applicant’s personal file. The Defence Forces said that these searches all produced a nil return.
The Defence Forces said that PSS conducted a search of all physical and electronic files held within PSS. This included a search of mobile phones held by the named PSS staff from the request as well as the Lieutenant Colonel. The Defence Forces said that records were located, text messages and diary entries, which were released as Records 3 and 4. The Defence Forces said that there were no records located in relation to complaints.
The Defence Forces said that its IT Section conducted a search of the email servers for all emails sent to and from the named Lieutenant Colonel and the named PSS staff. The applicant’s army number and variations of his name were searched between 1 January 2020 to 31 December 2021. The Defence Forces said this search resulted in two emails which were part-released as records 1 and 2.
The Defence Forces provided some context on the types of complaints which can be made by members of the Defence Forces. Chapter 1 complaints deal with inappropriate behaviour while Chapter 2 complaints refer to pay issues. The Defence Forces said that the correct procedure for the applicant to make his complaint would have been a Chapter 1 complaint.
The Defence Forces stated that all Chapter 1 and Chapter 2 complaints are recorded by each unit at unit level and brigade at headquarters level which it said were both contacted. The Defence Forces also said the Grievance Management Office (GMO) was contacted when processing this request because the GMO also keeps a record of all Chapter 1 and 2 complaints for the entire organisation. The Defence Forces said all confirmed they have no record of any complaint being submitted by the applicant.
The Investigating Officer drew the Defence Forces’ attention to the applicant’s statement in the application to this Office that he did not receive anything in relation to record 4. Record 4 shows the applicant’s name along with a date and time of a meeting he had with a member of staff in the PSS. The Investigating Officer asked the Defence Forces about the applicant’s claim that he did not receive Record 4. The Defence Forces responded by saying that this record was released on 8 April 2025 along with the other records. The Defence Forces said that at no point did the applicant inform it that they did not receive record 4. I suggest the applicant contact the Defence Forces directly if he does not have a copy of Record 4.
The Defence Forces also informed this Office that it has received 19 requests from the solicitor firm representing seven clients all relating to complaints made against the same named member of the Defence Forces. It said it has facilitated all requests to date, however the last four requests have been refused under section 15(1)(g) of the FOI Act as they are forming a pattern of repeated requests. The Defence Forces stated that, on numerous occasions, it has explained to the solicitors the role of the PSS and the complaints procedure set out by the Defence Forces. In an effort to satisfy the requests it received, the Defence Forces said that it agreed to carry out a search of all seven of the solicitor’s clients (including the applicant in this review) for any complaints ever submitted against the named member of the Defence Forces. The Defence Forces said that this search produced complaints for two of the solicitor’s clients, but not for the applicant in this case. The Defence Forces stated that it has asked the solicitor to discuss with its clients how their complaints were logged and with who. The Defence Forces stated that it has tried to explain to the solicitors that the PSS is not the correct channel for processing complaints but said that the solicitors have insisted that the PSS is where complaints are processed.
The Defence Forces also informed this Office that the solicitors contacted the Department of Defence in December 2024/January 2025 in relation to these complaints. The Department then contacted the Defence Forces Chief of Staff who in turn contacted 2Bde HQ to seek copies of the complaints. The Defence Forces said that a second search following from a previous FOI request was carried out by all areas for the Chief of Staff to make sure no records were missed. It said that it then informed the Department that complaints were found for only two of the solicitors’ clients. It said no complaints for the five other individuals exist. It said this could be because they never officially submitted these in writing or through the correct channels.
The Defence Forces concluded its submissions by saying that if the applicant could provide a copy of the complaint made then this could warrant an investigation as to why it cannot find any complaint, but as the case currently stands, it has been unable to find any records of complaints made by the applicant against the named member of the Defence Forces.
The applicant was provided with details of the Defence Forces’ submissions and was given the opportunity to provide submissions in response. The Investigating Officer asked if the applicant had any documentary evidence to support his position that the Defence Forces should have records relating to the complaint.
The applicant responded by saying that numerous complaints were lodged with PSS and were forwarded by the named PSS staff to the Lieutenant Colonel. The applicant said that the Defence Forces representations are untrue and said there should be copious communications between the PSS, the Chief of Staff, and the Lieutenant Colonel. The applicant did not provide any further evidence of this beyond these assertions.
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 have not been located.
The question I must consider in this case is whether the Defence Forces has taken all reasonable steps to ascertain the whereabouts of the records sought. In my view it has. The Defence Forces has provided details of the searches it undertook to locate any relevant records, details of which we provided to the applicant. I note the Defences Forces submissions about its engagements with the applicant’s solicitor about his complaint and other similar complaints. While the Defence Forces said it located complaint records for two of the solicitor’s clients, it has been unable to locate a complaint from the applicant. The Defence Forces have expressed a willingness to examine the matter further if the applicant can provide any evidence of his complaint. While I have noted the applicant’s submissions, in my view he has not provided any substantive evidence to suggest that further searches for the records he is seeking are warranted. This Office does not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Defence Forces has undertaken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further records exist or cannot be found. Accordingly, I find that it was justified in refusing access to records of a complaint made by the applicant under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Defence Forces’ decision to refuse access to further records, under section 15(1)(a) of the FOI Act, on the grounds that no records of the applicant’s complaint can be found.
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.
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Richard Crowley
Investigator