Whether the Defence Forces was justified in its decision to refuse the applicant’s request for access to records relating to his late father under section 15(1)(i) of the FOI Act on the ground that the records sought were previously released to him

10 March 2020

Background

On 11 October 2019, the applicant submitted a request to the Defence Forces seeking access to all records relating to his late father. While he quoted his father’s enlistment number, he also said he recently became aware of the existence of records relating to an individual with the same first initial and the same surname as his father who was also serving in the same branch of the Defence Forces at the same time and he quoted that second enlistment number. He suggested that it was one and the same person and he therefore sought records held under both numbers.

On 23 October 2019, the Defence Forces refused the request. It refused access to records relating to the first enlistment number under section 15(1)(i) on the ground that they had already been released to the applicant. It refused access to records held under the second enlistment number under section 37(1) on the ground that release of the records would involve the disclosure of personal information relating to third parties. 

On 29 October 2019, the applicant sought an internal review of that decision, wherein he provided further information in support of his request. The Defence Forces affirmed its original decision on 7 November 2019.  On 23 November 2019, the applicant sought a review by this Office of the Defence Forces’ decision on the ground that he had not previously received all relevant records in relation to his father.

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 the Review

During the course of the review, the Defence Forces informed this Office that the applicant had sought clarification of his father’s service number before he submitted his request. It said it informed him that the second number related to a different individual and not to his father and that the reference to the second number on his father’s files was most likely an error.

During the course of this review, the applicant confirmed that he was no longer seeking access to records held under the second number, nor was he seeking access to records held under the first enlistment number that were previously released to him.  However, he contended that further relevant records should exist relating to the first number.

The Defence Forces refused the applicant’s request for records relating to the first enlistment number under section 15(1)(i) on the ground that the relevant records had previously been released to him on foot of an earlier request in 2014. Accordingly, the scope of this review is concerned solely with whether the Defence Forces was justified in refusing the applicant’s request for access to records relating to his late father under section 15(1)(i).

Analysis and Findings

Section 15(1)(i) provides for the refusal of a request  where the request relates to records already released to the requester and where the records are available to the requester concerned.

It is the applicant’s position that further relevant records relating to his father should exist that were not released to him in 2014. He suggested that there should be records relating to the period 1963 to 1965 and that there should be records relating to the hospitalisation of his sister that he had been informed of by the Defence Forces some years previously.

During the review, Ms Swanwick of this Office informed the Defence Forces of the applicant’s argument that additional relevant records should exist and as such, this Office was considering whether the Defence Forces had carried out all reasonable steps in an effort to locate all relevant records.

In response, the Defence Forces said it did not carry out searches to locate relevant records when processing the request. It said it had provided the applicant with a copy of his father’s file in 2014. It said the applicant did not indicate in his subsequent request of 11 October 2019 that he believed any information was missing or left out and that he made no reference to his sister in the request. It referred to an email the applicant sent on 17 October 2019 and suggested that the email was unclear.

I accept that the applicant’s request of 11 October 2019 does not indicate that the applicant believed he had not received all relevant records on foot of his 2014 request. As such, if there had been no other engagements between the parties, it would have been reasonable, in my view, for the Defence Forces to assert that he had already received the records sought.

However, having examined the applicant’s email of 17 October 2019, which he sent before the decision was made on the request, it seems to me that he did, indeed, express his concerns as to the apparent absence of records from the 2014 release. In that email, he said he had a telephone conversation with the intended recipient of the email and had said that what he had received in 2014 was incomplete. He indicated in his email that he knew he did not get all of his father’s records, hence his second request. He also made express reference to information held on his father’s file relating to his sister.

It seems to me that in relying on section 15(1)(i) the Defence Forces did not have full regard to the applicant’s correspondence of 17 October 2019 and any relevant related telephone conversation which occurred. It is also important to note that under section 11(2) of the FOI Act, an FOI body must give reasonable assistance to a person who is seeking a record under the Act in relation to the making of the FOI request for access.

In my view, the Defence Forces had sufficient information on hand to enable it to determine that the applicant believed that he had not previously received all relevant records. As such, it seems to me that it took no steps to ascertain that the full file had previously been released to the applicant before refusing the request under section 15(1)(i).

In the circumstances, I consider that the most appropriate course of action to take at this stage is to annul the decision of the Defence Forces, the effect of which is that the Defence Forces must consider afresh the applicant’s request for all records relating to his late father and make a new, first instance, decision in accordance with the provisions of the FOI Act. 

I should add that this does not mean that I accept that additional relevant records exist. Rather, if the Defence Forces considers that it has previously released all relevant records and that no further relevant records exist or can be found, it is entitled to refuse the request for additional records under section 15(1)(a). Before it can do so however, it must take all reasonable steps to ascertain the whereabouts of the records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Defence Forces in this case. I direct the Defence Forces to conduct a new decision-making process on the applicant’s request for access to additional records relating to his late father.

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