Decision
Ms M and the Defence Forces
From Office of the Information Commissioner (OIC)
Case number: 140273
Published on
From Office of the Information Commissioner (OIC)
Case number: 140273
Published on
Whether the Defence Forces was justified, under section 10(1)(a) of the FOI Act, in refusing to release further records relating to the applicant on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken
28 January 2015
The applicant submitted an undated request to the Defence Forces for:
I understand that the names of personnel contained within my diary may be redacted.
On 17 June 2014, the Defence Forces decided to grant the request in part, releasing six records it had located in full, releasing one record in part, with the personal information of third party individuals redacted under section 28 of the FOI Act, and refusing three records under section 28 of the FOI Act. The Defence Forces also refused any records relating to the applicant's request for copies of any emails or correspondence between her Platoon Officer and the Battalion Commander and her request for any correspondence sent between Battalion Commander and any other officer pertaining to her, under section 10(1)(a) of the FOI Act, on the grounds that any such records do not exist or cannot be found after all reasonable searches have been made. On 10 July 2014 the applicant sought an internal review of this decision as she was not satisfied that all relevant records had been released and on 5 August 2014, the Defence Forces issued an internal review decision affirming its original decision. On 7 September 2014, the applicant sought a review by this Office of the Defence Forces' decision.
In her application for review and during the course of this review, the applicant sought to extend the scope of her original request so as to include records pertaining to additional individuals other than those stated in her original request. I note that Mr O'Gorman of this Office contacted the applicant to explain that this review is concerned solely with her original request, and only records relating to the applicant's original request can be included in this review. As Mr O'Gorman explained to the applicant in his letter of 15 January 2015, it is open to her to make a new application to the Defence Forces for any other information she is seeking.
The three records that the Defences Forces refused to release under section 28, records number eight, nine, and ten respectively, are the training diaries of three other individuals and are outside the scope of the applicant's original request.
Mr O'Gorman informed the applicant, by letter dated 15 January 2015, of the searches undertaken by the Defence Forces to locate all relevant records and of its responses. In his letter, he outlined his view that the Defence Forces' refusal to grant access to further records on the ground that no further records exist or can be found was justified and he invited the applicant to make further comments if she disagreed with his view. As no response was received from the applicant by the requested response date of 23 January 2015, I have decided to conclude this review by way of a formal binding decision.
In carrying out this review, I have had regard to the correspondence between the Defence Forces and the applicant as set out above. I have had regard also to communications between this Office and the applicant, and to communications between this Office and the Defence Forces. Finally, I have had regard to the provisions of the FOI Act.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
In its decision, the Defence Forces redacted certain parts of one record relating to the applicant's training diary under section 28(1) on the basis that it contained personal information relating to third parties. Section 28(1) provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. The applicant has made no issue with the application of section 28 to this record and having examined the record I am satisfied that section 28 does indeed apply and no further consideration of this aspect is necessary.
Accordingly, this review is concerned solely with the question of whether the Defence Forces was justified in its decision to refuse further records coming within the scope of the applicant's request under the provisions of section 10(1)(a) of the FOI Act on the basis that no further relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
The Defence Forces' position is that it cannot locate further relevant records. Accordingly, section 10(1)(a) of the FOI Act is relevant.
Section 10(1)(a) of the FOI Act provides as follows:
"(1) A head to whom a request under section 7 is made may refuse to grant the request if-
(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"
The Commissioner's role in a case such as this is to review the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie).
In its submission to this Office, dated 22 December 2014, the Defence Forces provided comprehensive details of the searches it undertook in an effort to locate all relevant records coming within the scope of the applicant's request. As I have outlined above, Mr O'Gorman of this Office has already provided the applicant with details of those searches. Therefore, while I do not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.
While the applicant may not be satisfied with the Defence Forces' responses, she has provided no supporting evidence to suggest that other records relevant to her original request do, indeed, exist. The position of the Defence Forces is that it cannot find any further records relevant to the applicant's FOI request. Having reviewed the steps taken by the Defence Forces to locate the records at issue, I am satisfied that it has taken all reasonable steps to locate all relevant records and I find that section 10(1)(a) of the FOI Act applies.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Defence Forces' to refuse access to further records under the provisions of section 10(1)(a) of the FOI Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator