Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to records relating to the applicant’s 2017 performance review on the ground that no relevant records exist or can be found

20 November 2020

Background

The applicant is a member of the Permanent Defence Forces. For the year 2017 he received a negative performance appraisal by a named Comdt. In the performance appraisal the Comdt. stated that the applicant “has put in various reports and letters to and through me” which the Comdt. viewed somewhat negatively. The applicant made an earlier FOI request [Defence Force Reference XXXX/XXXX] relating to the negative performance appraisal in which the Defence Forces released records. At internal review stage in that case it appears that the Comdt. stated “I am aware that there were more documents which fed into this AF667 that I don’t now have a record of”. On 3 July 2020, the applicant responded citing that Defence Force reference and asked for a description of the missing documents. The Defence Forces dealt with this letter as a new FOI request and proceeded on that basis.

In a decision dated 14 August 2020, the Defence Forces refused the request under section 15(1)(a) of the Act on the ground that the records sought could not be found. On 20 August 2020, the applicant sought an internal review of that decision. I note that the applicant did not object to his request for a description of the missing documents being dealt with as a new request at this time. On 4 September 2020, the Defence Forces affirmed its original decision. On 14 September 2020, the applicant sought a review by this Office of the refusal of his request.

During the course of the review, the Investigating Officer provided the applicant with the details of the searches carried out by the Defence Forces and of its explanation as to why no relevant records could be found or exist. She informed the applicant of her view that the Defence Forces was justified in refusing the request under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter. The applicant responded on 13 October 2020 indicating that he was not satisfied with the explanation provided by the Defence Forces. Therefore, 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 outlined above and to correspondence between this Office and both the Defence Forces and the applicant 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 Act, in refusing the applicant’s request for access to additional records cited by a named Comdt. that fed into the applicant’s performance appraisal on the ground that no relevant records can be found.

Analysis and Findings

Section 15(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. In such cases, the role of this Office 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 and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the course of this review, the Defence Forces provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Defence Forces said the Comdt. searched for all/any submissions made by the applicant to him. The Comdt. said that such submissions were normally personal e.g. relating to the applicant, his career, or his training and did not relate to operational matters.

It said since the appraisal was provided, the Comdt. in question had moved squadron and back again. It said files relating to the squadron of which the applicant was a member at the time were left in the relevant office while the Comdt. took his own personal records and files with him to his new office. It said the Comdt. completed a search for relevant records when the request was first made and that subsequently rechecked relevant areas when additional requests came to him.

Specifically, the Defence Forces said the Comdt. carried out a physical search of the desks, filing cabinets and lockers located in both offices. He also carried out a search of the Officers’ Mess to ensure he had left no documents there. He said he does not bring such files home with him and there are no such files in his private residence, or in his privately owned vehicle. He also said he asked his successor if he had seen any such file and was informed that he had not.

The Defence Forces said that the Comdt. also carried out electronic searches using the applicant’s Defence Forces and civilian email accounts as these were the only accounts used by the applicant to correspond with him. He also carried out an electronic search using the applicant’s name.  Finally, the Comdt’s said he does not regularly provide physical supporting documentation when delivering performance appraisals, and that the appraisal is delivered verbally.

It is, in essence, the Defence Force’s position that no relevant records can be found or do not exist. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist.

Having considered the details of the searches undertaken and its explanation as to why no records exist or can be found, I am satisfied that the Defence Forces has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that the Defence Forces was justified in refusing access to records on the ground that no relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2), I hereby affirm the Defence Forces refusal of the applicant’s request for records relating to his performance under section 15(1)(a) of the FOI Act on the ground that no relevant records exist or can be found.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator