Whether the Defence Forces was justified in its decision that records sought by the applicant relating to a specified interview panel and authorisation board do not exist

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted an FOI request to the Defence Forces on 10 September 2014 seeking a convening order for an Aircraft Inspector Interview Panel, a convening order for an Aircraft Inspectors Authorisation Board, and copies of regulations governing the constitution of the Panel and Board. The Defence Forces issued its decision responding to this request on 6 November 2014 refusing the request under section 21(1)(a) of the FOI Act.

The applicant was not satisfied with this response and applied for an internal review on 12 November 2014. The Defence Forces issued its internal review decision on 4 December 2014. It stated that the convening order sought did not exist and released extracts of an ARM Part E report concerning the interview process which it contended addressed the remainder of the applicant's request. The applicant was not satisfied with the Defence Forces' position that the convening orders do not exist and submitted an appeal to this Office dated 5 December 2014.

During the course of this review the Defence Forces in submissions to this Office confirmed its position as set out in its internal review, stating there was no convening order for the Aircraft Interview Panel Report or for Air Corps Aircraft Inspectors Authorisation Board. It further stated that the only Regulations relating to the applicant's request were those already released. Insofar as the applicant sought further records, the Defence Forces stated that these did not exist.

Mr. Christopher Campbell of this Office contacted the applicant on 20 February 2015 and advised him of the Defence Forces' position. The applicant conveyed that while he was of the opinion that such records should exist, he would be satisfied with a decision stating that the records do not exist.

In conducting this review I have had regard to the submissions of the Defence Forces on this request and its communications with this Office and the applicant; the communications of the applicant with the Defence Forces and this Office; 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.

Scope of Review

The position of the Defence Forces is that the records requested by the applicant do not exist. Consequently, this review is solely concerned with the question of whether the Defence Forces was justified in its decision to refuse access to the information requested on the grounds of section 10(1)(a) of the FOI Act on the basis that the requested records do not exist.

Preliminary Matters

In his submission to this Office the applicant suggested that if it is a case that the Defence Forces are unable to provide him with a copy of the convening order containing the four names of the personnel that signed his Aircraft Inspectors Interview Panel Report, a statement acknowledging that there was maladministration will suffice.

I should explain that the Commissioner does not have the authority to require a public body to create a record where such records do not exist or, in this case, to provide a statement as sought by the applicant. It is also outside the remit of the Commissioner to adjudicate on how public bodies perform their functions generally.

Analysis and Findings

Section 10(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. The Commissioner's role in cases 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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. 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 were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its 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 this Office's website,www.oic.ie)

The Defence Forces states clearly that the convening orders sought by the applicant do not exist. In its internal review decision and submission to this Office the Defence Forces outlined the interview process and gave an explanation why the records sought by the applicant do not exist. It appears that the applicant now accepts this position and considers this demonstrates maladministration on the part of the Defence Forces; a matter which is outside the scope of this review. Accordingly, I find that the Defence Forces was justified in deciding to refuse the request on the basis of section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Defence Forces.

Right of Appeal

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