Decision
Mr X and The Defence Forces
From Office of the Information Commissioner (OIC)
Case number: OIC-151703-V2B6N2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151703-V2B6N2
Published on
18 December 2024
In a request dated 12 July 2024, the applicant sought access to the following:
1. All correspondence including emails within the Defence Forces since 1 July 2023 that relates to the Military Chaplaincy Review Board.
2. All meeting minutes and other documents within the Defence Forces since 1 July 2023 that relates to the Military Chaplaincy Review Board.
On 8 August 2024, the Defence Forces refused the applicant’s request under section 29(1) of the FOI Act, on the basis that the records concerned contain matters relating to the deliberative process of an FOI body. The Defence Forces stated that the records sought cannot not be released as the review is not yet complete. On 8 August 2024, the applicant sought an internal review of the Defence Forces decision and claimed there are records that are not part of any deliberation. He noted the Defence Forces had not provided a schedule of the records in question. On 2 September 2024, the Defence Forces issued an internal review decision varying its original decision, releasing one record concerning part 1 of the applicant’s request and refusing part 2 of his request under section 15(1)(a) of the FOI Act.
On 2 September 2024, the applicant applied to this Office for a review of the Defence Forces decision. In his application to this Office, the applicant stated he was of the view that further records relating to his request exist. He referred to emails he received from the Defence Forces on 9 and 10 July 2024 that indicated the work of the MCRB was ongoing. The applicant also said that the initial response to his FOI suggests that records do exist.
During the course of this review, the Investigating Officer provided the applicant with details of the Defence Forces submissions to this Office wherein it outlined its reasons for concluding that records relating to the applicant’s request do not exist or cannot be found. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did. Following further submissions from the applicant, in which he stated he was aware that a third party had been in contact with the MCRB about its review, the Investigating Officer sought further submissions from the Defence Forces.
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 outlined above, including the submissions made by both parties during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Defence Forces was justified in refusing, under section 15(1)(a) of the Act, records relating to the Military Chaplaincy Review Board from 1 July 2023 to 12 July 2024 (the date of the applicant’s request) on the basis that the records sought do not exist or cannot be found.
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 the 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 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 records along with miscellaneous and other information about the record management practises of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act is concerned with access to records that a public body holds as opposed to records that a request consider ought to exist.
In its submissions to this Office, the Defence Forces stated that an electronic search was conducted through the form of an email search by the named individuals and the servers using the keywords “Military Chaplaincy Review Board”. It stated that a manual search was also conducted to see if the records had been filed in the office of the Deputy Chief of Staff (Support), which it stated is the only place records may be stored. It said that no further records would have been archived or filed in a different area. It stated that the Board’s review is currently still on-going and it does not have a date when this is due to conclude. It stated that further records may be created when the review is concluded.
The Defence Forces said that it consulted with its IT Department to conduct searches of its servers for emails held by the Board President of the MCRB. It stated that the search included all mails sent, received, deleted archived or in a junk folder and that emails are stored on the servers in perpetuity. It stated that this search came back as a nil return, meaning that the named individual had no mails in relation to the MCRB within the time period of the applicant’s request. The Defence Forces stated that this search would have been an accurate search conducted of the servers directly. It said that when an internal review was sought by the applicant, the IT Department, the Deputy Chief of Staff (Support) and the named individual were contacted directly and asked to conduct new searches. It said that these searches also returned a nil result. It said that during the course of the internal review a record was produced by the Deputy Chief of Staff (Support) which was released to the applicant as part of the internal review decision. It stated that a further 3 records were found during the internal appeal stage that reference the MCRB. It stated that these records fall outside the scope of the applicant’s request as the records are outside the timeline referenced in the applicant’s request. The Defence Forces in its submissions to this Office identified an additional record which it stated was not related to the MCRB. A copy of these records were provided to this Office.
A. Record A is an email that post-dates the applicant’s request and contains an undated attachment about Draft Terms & Conditions for new entrant chaplains. The Defence Forces said that Record A is not pertaining to the request and that it was included in an email from DCOS (Sp) office to show that the review is mentioned and is on-going.
B. Record B is an email chain outlining the searches undertaken to locate records sought by the applicant.
C. Record C is an email chain that pre-dates the applicant’s request.
D. Record D is another email chain that pre-dates the applicant’s request and includes an email from the applicant to the chairperson of the MCRB.
E. Record E is an undated Board Report, which as noted above the Defence Forces said falls outside the scope of the applicant’s request as it is outside the timeline of the applicant’s request.
When asked by this Office to clarify why it had initially refused the applicant’s request under section 29(1) of the Act, the Defence Forces said it was under the impression that due to an on-going review the records would be refused under section 29(1) as the review is not yet completed. Following the submissions provided regarding the refusal of records under section 29 of the FOI Act, the Investigating Officer sought clarification from the Defence Forces regarding the existence of records within the scope of the applicant’s request, which fell to be refused under this section of the Act. The Investigating Officer also sought submissions from the Defence Forces regarding whether other members of the MCRB had be asked to search their records for records relevant to the applicant’s request.
In its submissions, the Defence Forces re-stated that as the review is on-going, it falls under section 29 of the FOI Act as any records concerned relate to a deliberative process which is currently ongoing. It stated that it only holds records that fall outside the scope of the applicant’s request, excluding the record that was released during the internal review process. It stated that the report is the only further record which exits and it is currently being review.
Regarding whether other members of the MCRB were contacted and asked to carry out further searches, the Defence Forces stated that MCRB President was contacted as all correspondence would have been through him to and from other members of the board. It said that this individual and the IT Department searched his emails which resulted in a nil return. The Defence Forces stated that members of the board would have met in person and spoke over the phone which would not have caused a record to be created.
In submissions to this Office the applicant said that he introduced a chaplain from another defence force to the President of the Board during the course of the MCRB review and queried why there no records exist of the Board’s engagement with this chaplain. In response to the Investigating Officer’s query in this matter, the Defence Forces stated that the President of the Board said he had a phone call with the chaplain in question and that the chaplain provided him with a document they discussed during their phone call.
Analysis
The FOI Act does not require absolute certainty as to the existence or location of records. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. The question I must consider, therefore, is whether the Defence Forces has taken all reasonable steps in this case to ascertain the whereabouts of the records sought.
I have had regard to the submissions made by the Defence Forces including the search details and the reasons it concluded that no further records exist. It seems to me that the focus of the searches carried out by the Defence Forces was on records held by the MCRB President on the basis that all correspondence would have gone through him.
In submissions to this Office the applicant also said that he received an email from the President of the Board on 9 July 2024, saying that that he is no longer a member of the Military Chaplaincy Review Board but that the work of the Board is continuing. It is unclear to me whether someone else may have taken over this role, and if so whether that individual may potentially hold records. As noted above, the President of the Board said he had a phone call with a chaplain from another defence force, details of which were outlined in the Defence Forces’ submission to this Office. The President of the Board said he also received a copy of a policy document from the chaplain in question. It seems that neither this document or a record of the phone call that was outlined in the submissions (if one exists) were considered to be within the scope of the applicant’s request. No details were provided of when this call took place.
Furthermore, having regard to the submissions provided, it seems to me that reasonable searches in this case would include engaging with the other members of the MCRB and conducting searches for any relevant records they may hold. Additionally, I note that the Defence Forces stated that while the MCRB would have met in person and spoke over the phone no records of these engagements would have been created. No details were provided to this Office about the work of the MCRB and in my view the Defence Forces has not provided an adequate explanation as to why no records relating to the work of the MCRB were created during the period from 1 July 2023 to 12 July 2024.
Furthermore, while the Defence Forces contend that Record A does not come within the scope of the applicant’s request, the email refers to the Draft Terms & Conditions for new entrant chaplains. I note from Record E (Board report) that one of the Board’s Terms of Reference is to consider and recommend terms and conditions of service for Defence Forces Chaplains. In addition, Record A also refers to other individuals who were working on the Draft Terms & Conditions. It would seem reasonable to me that these individuals and the author of the email would at least be consulted about the possibility that they may hold relevant records, and asked to carry out searches. Overall, it seems to me that the Defence Forces took too narrow a focus on the records sought and in the searches undertaken to locate all relevant records. When considering the applicant’s request again, I would also expect the Defence Forces to adequately explain why it considers the un-dated Draft Terms & Conditions for new entrant chaplains and Board report do not come within the scope of the applicant’s request.
In regard to the searches which the Defence Forces said it undertook, I note that a keyword search was carried out using the search term “Military Chaplaincy Review Board”. I would expect that reasonable searches for records by the Defence Forces would include the following search terms “MCRB”, “Review Board”, “Board Meeting”, “Chaplaincy Review Board”.
In the circumstances, I am not in a position to conclude that the Defence Forces took all reasonable steps to ascertain the whereabouts of the records sought by the applicant, given that the confined nature of the searches outlined by it. I find, therefore, that the Defence Forces was not justified in its decision to refuse the applicant’s request under section 15(1)(a).
Finally, it seems to me that the Defence Forces took a blanket approach when it initially refused the applicant’s request under section 29 of the Act without having any regard to the records that may exist or the content of any such records. Should the Defence Forces locate any records that fall within the scope of the applicant’s request, and consider any such records exempt under section 29, I would expect the Defence Forces to consider the content of those records and not simply refuse the records outright without due regard to the content. As the Defence Forces will be aware, the public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest.
As noted above, the Defence Forces claim that certain records it holds do not come within the scope of the applicant’s request. It is open to the applicant to make a new request to the Defence Forces for any such records, should he wish to do so. Before doing so, I suggest he engages with the Defence Forces for assistance in framing any such request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Defence Force’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act and I direct it to consider the request afresh.
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