Whether the Defence Forces was justified in refusing access to further records relating to the applicant sent or received by named parties and containing a number of terms under section 15(1)(a) of the FOI Act, on the grounds that no further records exist or can be found after all reasonable steps to locate them have been undertaken

1 December 2020

Background

On 5 February 2019 the applicant submitted a three-part request to the Defence Forces for the following:

(i) Any and all correspondence or emails pertaining to him sent or received by six named members of a named unit (unit A) from 26 September 2012 to 30 August 2014
(ii) Any and all correspondence or emails pertaining to him sent or received by four named members of another named unit (unit B) during that same period
(iii) Any and all correspondence or emails pertaining to him sent or received by a named member of a medical unit during that same period

The Defence Forces wrote to the applicant and advised him that his request fell to be refused under section 15(1)(c) of the FOI Act on the basis that initial searches had returned 571 emails. It asked the applicant to refine his request in order to avoid being refused under section 15(1)(c). The applicant declined to refine his request and on 26 April 2019, the Defence Forces refused the request under section 15(1)(c) of the FOI Act on the grounds that it was voluminous.

Following this, the applicant submitted a new request on 7 May 2019, wherein he reduced the number of individuals involved and the timeframe. He identified four members of unit A, three members of unit B, and the same member of the medical unit. He narrowed the timeframe to 1 January 2013 to 30 August 2014. He said the records sought pertain to a number of specified matters, namely;

• His medical condition,
• His regimental duties,
• His redress,
• His detachment to unit B,
• His movement to a named barracks on a work detail,
• His fitness test, and
• His medical disposal.

On 28 August 2019, the Defence Forces part-granted the request and released 22 records it had identified as coming within the scope of the request. It made redactions to 15 of those records under section 37 of the FOI Act on the ground that the redacted information comprised personal information relating to other individuals.

On 19 July 2019, the applicant sought an internal review of that decision. It appears that the Defence Forces did not receive this correspondence, and the applicant wrote again on the 31 August 2019, seeking an internal review. On 1 October 2019, the applicant wrote to this Office seeking a review of the deemed refusal of his internal review request as he had not received an internal review decision at that stage.

On 14 October 2019, the Defence Forces issued a late internal review decision in which it affirmed its original decision. On 16 October 2019, the applicant sought a review by this Office of that decision.

During the course of the review, this Office provided the applicant with details of the submission made by the Defence Forces regarding the searches it conducted in response to his request and invited him to make a further submission on the matter. The applicant subsequently provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting my review, I have had regard to the correspondence between the Defence Forces and the applicant as outlined above and to correspondence between this Office and both the Defence Forces and the applicant on the matter.

Scope of Review

While the applicant stated in his application for review that he believed he was entitled to all 571 emails initially identified by the Defence Forces as coming within the scope of his initial request of 5 February 2019, this review is concerned with the decision taken by the Defence Forces on his refined request of 7 May 2019. As such, this Office cannot consider whether a right of access exists to any of those 571 emails that are not captured by scope of the refined request.

Furthermore, as the applicant stated that he is not seeking a review of the redactions made to records already released to him, the redactions have not been considered in this review.

Accordingly, the review is concerned solely with the question of whether the Defence Forces was justified in refusing to release any additional records coming within the scope of the applicant’s request of 7 May 2019 on the ground that all relevant records have been released and no further records exist or can be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

At this stage, it is worth noting the nature of the communications the applicant expects the Defence Forces to hold and that has not, to date, been released. In correspondence with this Office, the applicant said he believed further records ought to exist for the period 1 January 2013 to 30 August 2014 as he was moved from one unit to another having being medically downgraded. He said that movement of staff required prior approval of the relevant Chief of Staff and that such correspondence ought to exist. In particular, he suggested that there may be emails from a named doctor and his superiors related to his medical grading and emails between staff in his current and previous companies. He suggested that the unit to which he was transferred was likely to have sought information about him from his previous unit. He also suggested that there was correspondence discussing his move to the Officers Mess in a particular unit, but ultimately he was moved to Operations in that unit instead and that no correspondence was provided to him which discussed this change.

In its submissions to this Office, the Defence Forces confirmed that it identified 571 emails coming within the scope of the applicant’s initial request. It said its searches using the refined search parameters provided by the applicant returned 22 records. It said the remainder of the 571 records fall outside the scope of the applicant’s refined request. Its position, in essence, is that the remaining records were either created prior to January 2013, do not contain the key terms identified by the applicant, or they were not sent or received by the individuals identified by the applicant in his request of 7 May 2019.

The Defence Forces provided details of the searches conducted in an attempt to locate relevant records coming within the scope of the refined request. In short, it said that emails sent and received since 2009 and other electronic data are stored in the Mail Archive. When a member leaves the Defence Forces, their email account is deactivated but emails remain in the archive. It said it conducted searches centrally using the email archive search tool using the names of the individuals and key search terms identified by the applicant. It clarified that the email archive search tool searches both subject lines and bodies of emails.

The Defence Forces explained that it used the following key terms to search for records:

• Medical condition
• Regimental duties
• Redress
• Detachment to a named unit
• Movement to a named barracks on Work Details
• Fitness test
• Medical disposal
• Old files HQ 2 Bde

The Defence Forces further explained that only records containing those exact terms, as searched for, would be captured by its email archive search tool using a string based search function. For example, the Defence Forces stated that a search for “Cpl” would not return “Corporal” or “rank.”

The Defence Forces added that it had consulted relevant staff members in the relevant units, the Central Medical Unit and its Communication and Information Services Unit. It said it searched all relevant hardcopy files relating to the applicant. It noted in particular that the doctor identified by the applicant had provided written confirmation that he had searched for and held no relevant records coming within the scope of the applicant’s request. It said that the updating of an individual’s medical condition may be considered on a case-by-case basis between the medical doctor and the unit commander, but this does not appear to have occurred in the relevant time period in this case. Indeed, the applicant confirmed in correspondence with this Office that he was medically downgraded in September 2012.

The Defence Forces said that communications pertaining to the posting or transfer of a serving member are recorded on the relevant form as set out in its procedures. It said the procedure is conducted through the chain of command and there is no requirement in said instruction for direct communication between the parent unit and proposed unit. It noted that the applicant had not requested records from his previous unit and as such, searches of his previous unit’s records had not been conducted.

Having considered the submissions of the Defence Forces, this Office sought to clarify whether the Defence Forces had considered if any of the remaining 571 email records might pertain to the matters identified by the applicant in his request of 7 May 2019 while not containing the key search terms used. In response, the Defence Forces acknowledged that it was possible that further relevant emails might exist that were not identified in its searches as they did not contain the precise search terms.

Based on this fact alone, I am not satisfied that the Defence Forces has taken all reasonable steps to locate all relevant records in this case. The searches conducted in response to the original request that returned 571 emails were based on the individuals named in that request and the time-frame specified. It seems to me that the Defence Forces could reasonably have been expected to conduct a similar search based on the reduced number of individuals and the reduced time-frame with a view to determining how many of those 571 emails were captured by the refined request. At that stage, the Defence Forces could have examined those emails to determine which emails pertain to the matters identified by the applicant (assuming that the search did not return such a number that would have been deemed by the Defence Forces to cause the request to be refused again under section 15(1)(c)). This would have eliminated the possibility that the use of precise search terms might have failed to identify relevant records.

In the circumstances, I find that the Defence Forces was not justified in refusing access, under section 15(1)(a), to any additional records coming within the scope of the applicant’s request of 7 May 2019 on the ground that no further records exist or can be found. I consider that the appropriate course of action to take is to annul the decision of the Defence Forces and to direct it to consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act and having regard to my findings in this case. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the fresh decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Defence Forces to refuse, under section 15(1)(a) of the FOI Act, access to any additional records relating to the matters identified by the applicant, on the ground that no additional records exist or can be found. I direct the Defence Forces to conduct a fresh decision-making process in respect of the applicant’s request.

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