Whether the Defence Forces was justified in its decision to refuse access to information in relation to disciplinary proceedings of an identified member of the Defence Forces under section 15 (1)(a) of the FOI Act on the ground that no record containing that information exists 

10/01/2018

The Senior Investigator affirmed the decision of the Defence Forces. He found it was justified in refusing access to the information sought under section 15 (1)(a) of the FOI Act.

Background

This review has its background in disciplinary proceedings that were taken against the applicant and subsequently dismissed, in relation to an incident concerning the applicant and a superior officer. On 10 July 2017, the applicant submitted a request to the Defence Forces under the FOI Act for the reasons for the decision not to initiate disciplinary action against the superior officer, in light of the charges against him having been dismissed.

On 18 September 2017, the Defence Forces issued a decision in which it refused the request under section 37 of the FOI Act on the ground that the information refused involves personal information of the individual concerned. The applicant sought an internal review of that decision on 21 September 2017, following which the Defence Forces issued an internal review decision affirming its original decision. On 24 October 2017, the applicant sought a review by this Office of the decision of the Defence Forces.

During the course of the review, the Defence Forces informed Ms Hannon of this Office that no relevant records that contain the information sought exist. Ms Hannon subsequently provided the applicant with details of the explanation provided by the Defence Forces as to why it does not hold relevant records and she informed him of her view that the Defence Forces was justified in refusing the request under section 15 (1)(a) of the FOI Act. She also invited the applicant to make a further submission which he has done. I therefore consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Defence Forces and the applicant. I have also had regard to the communications between this Office and both the applicant and the Defence Forces on the matter.

Scope of Review

This review is concerned solely with whether the Defence Forces was justified, under section 15 (1)(a) of the FOI Act, in refusing the applicant's request for the reasons for the decision not to initiate disciplinary action against an identified member of the Defence Forces on the ground that no record containing the information sought exists.

Preliminary Matters

Before I address the substantive issues arising in this case, I wish to make a number of preliminary points.

While the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices in certain circumstances. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. In other words, if the record sought does not exist, that is the end of the matter.

However, it is also important to note that the FOI Act also provides, at section 10, for a person who is affected by an act of a public body, and has a material interest in a matter affected by the act or to which it relates, to be given a statement of reasons for the act. While the FOI Act requires that applications for statements of reasons are expressed to be such applications, the public body is obliged to assist the individual where applications are made that do not purport to be applications under section 10 but the information sought can be obtained only by way of making such an application.

The applicant sought reasons for the decision not to initiate disciplinary action against a superior officer. Given the precise wording of the applicant's request I would normally have expected the Defence Forces to bring the applicant's attention to the provisions of section 10. Indeed, I considered whether it might be appropriate to annul the decision of the Defence Forces in this case and to direct it to process the request as an application made under section 10. However, I am satisfied that doing so would serve no useful purpose, for the following reasons.

As I have outlined above, to be entitled to a statement of reasons for a particular act or decision of the Defence Forces, the applicant must be affected by the act and must have a material interest in a matter affected by the act or to which it relates. For the purposes of section 10, a person has a material interest in a matter affected by an act of the public body or to which such an act relates if the consequence or effect of the act may be to confer on, or withhold from, the person a benefit.

In my view, any decision taken by the Defence Forces not to initiate disciplinary action against an individual other than the applicant is not an act or decision that affected the applicant, nor could such a decision have the consequence of conferring on or withholding from the applicant a benefit.  As such, it seems to me that even if the Defence Forces had assisted the applicant in making an application under section 10, he would not have had an entitlement to the statement of reasons sought.

The final preliminary point I would like to make is that this Office has no role in considering the appropriateness, or otherwise, of the actions taken by the Defence Forces in relation to the disciplinary issues arising. As I have outlined above, our role is confined to determining whether the Defence Forces was justified in refusing the FOI request.

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 role of this Office in cases 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 his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
In a submission to this Office, the Defence Forces stated that that no records exist containing the information sought. It stated that the charges in relation to the applicant were dismissed, and that it was not considered to bring charges against the individual in question. I have no reason to doubt the evidence of the Defence Forces on this point.
Having regard to the explanation provided by the Defence Forces, I find that it was justified in its decision to refuse the applicant's request under section 15 (1)(a) of the FOI Act on the ground that no record containing the information sought exists.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse access to information in relation to disciplinary proceedings of an identified member of the Defence Forces under section 15 (1)(a) of the FOI Act on the ground that no record containing that information exists. 

Right of Appeal

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.

Stephen Rafferty,
Senior Investigator