Case Number: 160159

Whether the Defence Forces was justified in refusing access to further records relating to the applicant's request for risk assessments pertaining to the use of six specified chemical products, on the ground that no further records exist or can be found

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 31 January 2016, the applicant made a request to the Defence Forces for a copy of all risk assessments carried out in the Air Corps pertaining to the use of six specified chemical products. He also sought reasons for the decision of the Formation Health and Safety Officer not to recommend the provision of occupational health surveillance to be made available to him. The Defence Forces issued a decision on 11 March 2016 granting the applicant's request. It released six "Risk Control Data Sheets" which referred to chemicals generally and to activities involving the use of non-specified chemicals in the Air Corps, and one undated and unsigned risk assessment form entitled "DF-RA-04 Chemicals/Hazardous Substances". The Defence Forces also provided reasons for the decision made in respect of the provision of occupational health surveillance.

On 14 March 2016, the applicant sought an internal review of the Defence Forces' decision stating that the Risk Control Data Sheets were not the records that he had sought. On 30 March 2016, the Defence Forces affirmed its decision. On 7 April 2016, the applicant sought a review by this Office of the Defence Forces' decision. In a telephone conversation with Ms McCormack of this Office, he confirmed that his application for review was confined solely to his request for access to risk assessments pertaining to the six specified chemical products.

During the course of this review, the Defence Forces provided this Office with an explanation of the process for conducting risk assessments for chemical hazards or chemical handling related activities and details of the searches undertaken to locate relevant records. Ms Lydia Buckley of this Office contacted the applicant on 15 July 2016, and provided him with details of these searches. She also informed the applicant of her view that the Defence Forces was justified in deciding that no further records relevant to the applicant's request exist or can be found, having taken all reasonable steps to locate them. As the applicant is not satisfied with the details provided, I consider it appropriate to conclude this review by way of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Defence Forces and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the Defence Forces.

Scope of Review

This review is solely concerned with whether the Defence Forces was justified in its decision to refuse access to further records relating to the applicant's request for risk assessments pertaining to the use of six specified chemical products on the ground that no further records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in such cases 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. 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 FOI body, on the basis of which the FOI body concluded that it has taken all reasonable steps to locate the relevant records. The Office's understanding of its role in these cases was approved by Quirke J in the High Court case Matthew Ryan and Kathleen Ryan v the Information Commissioner (available on this Office's website, www.oic.ie).

In response to a request from this Office, the Defence Forces explained how it conducts risk assessments and provided information on the record management practices applicable to risk assessments. It also provided details of the searches conducted to locate the risk assessments sought by the applicant. As outlined above, Ms Buckley of this Office has already provided the applicant with these details. While I do not propose to repeat those details in full, I can confirm that I have had regard to them for the purpose of this review.

In summary, the Defence Forces stated that not every chemical used by members of the Air Corps is individually risk assessed due to the diversity of chemical used. It stated that no individual risk assessments were created for the six specific chemical products identified by the applicant and that chemicals were assessed under a generic risk assessment or Risk Control Data Sheet for "Chemicals" or for general categories, i.e. solvents, greases, and oils. It also said that a number of activities which involved the use of chemicals were risk assessed and a generic Risk Control Data Sheet compiled for these activities. The Defence Forces stated that a Risk Control Data Sheet is equivalent to a "risk assessment". It stated that a Risk Control Data Sheet identifies a hazard, outlines the risk factors involved, and specifies the protective or preventative measures to be taken.

In relation to the searches conducted for relevant records, the Defence Forces stated that the electronic database which contains the Risk Control Data Sheets from 2009 - 2015 was searched for records relating to the applicant's request and that manual searches were undertaken in the Formation Safety Office. It stated that the database contains an electronic record of all Risk Control Data Sheets from 2009 - 2015 and that the Occupational Health and Safety Risk Management system changed in 2015. I understand, from the details of a submission made by the Defence Forces in a separate, unrelated, review that the Risk Control Data Sheets maintained on the electronic database and released to the applicant are, in essence, template forms. The first of the sheets released identifies the hazard as "Chemicals". I also understand that the unsigned risk assessment form entitled "DF-RA-04 Chemicals/Hazardous Substances" which was released is also a template which represents a new format of risk assessment, effective from 2016, that also identifies "Chemicals" as a hazard.

While such template records could arguably be described as records that describe the type and nature of risk assessments carried out in relation to chemicals, they are not copies of records which contain details of the actual assessments carried out in the past. It seems to me that details of the assessments that were actually carried out is what the applicant was seeking. Nevertheless, while the Defence Forces confirmed during the course of the review that signed and dated versions of these Risk Control Data Sheets, and other Risk Control Data Sheets, exist and that it is willing to release those records, the applicant has made it clear that he does not consider the Risk Control Data sheets to be risk assessments and that he is not seeking access to such records.

It appears that the applicant's argument is that the Risk Control Data sheets do not meet the legislative requirements of the Safety, Health and Welfare at Work (Chemical Agents) Regulations 2001. He considers that individual risk assessments pertaining to the six specific chemicals products identified by him ought to exist. This Office has no role in determining whether the processes and practices of the Defence Forces are in compliance with the relevant health and safety legislation. Furthermore, the FOI Act is concerned with the provision of access to records actually held. It does not provide for a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exists. The question I must consider is whether the Defence Forces has taken all reasonable steps to locate all relevant records held by it coming within the scope of the FOI request.

Having considered the Defence Forces' account of how it conducts risk assessments and of the steps taken to locate relevant records, I find that the Defence Forces was justified in deciding that no individual risk assessments relating to specific chemicals products identified by the applicant exist or can be found.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, 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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator