Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to records of a statement the applicant gave in a Redress of Wrongs as well as any other records relating to him regarding the matter on the ground that no further relevant records exist or can be found

2 December 2020

Background

The applicant is a member of the Permanent Defence Forces. Whilst on an overseas mission he was a witness to an incident which was later investigated by a named Comdt. in a Redress of Wrongs (ROW).  The allegation of wrongdoing was not against the applicant. He gave an oral statement to the Comdt. In a request dated 19 June 2020, the applicant sought access to a copy of the statement submitted to the Comdt. and any information/emails or handwritten notes relating to him on the matter.

In a decision dated 17 August 2020, the Defence Forces refused the request under section 15(1)(a) of the Act on the ground that no relevant records could be found.  On 20 August 2020, the applicant sought an internal review of that decision. He alleged that the Comdt. had taken notes. On 4 September 2020, the Defence Forces amended its decision and released a partially redacted record to the applicant, namely the Comdt.’s report of his investigation of the ROW.

On 27 October 2020, the applicant sought a review by this Office of the Defence Force’s decision. In his application for review, he did not indicate what particular aspect of the internal review decision he was dissatisfied with, apart from his view that the delay in providing the information was “excessive”.

On 6 November 2020, this Office’s Investigating Officer emailed the applicant to clarify what particular aspect of the decision he wanted us to review. In his response of 9 November 2020, the applicant said he gave an oral statement to the Comdt. and that notes were taken. He suggested that his statement should have been recorded due to the seriousness of the allegations.

Subsequently, the Investigating Officer provided the applicant with the details of the submissions of the Defence Forces concerning the searches undertaken to locate relevant records and of its explanation as to why no further relevant records could be found or exist. She informed the applicant of her view that the Defence Forces was justified in refusing to grant access to any further records under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter. In his response of 19 November 2020, the applicant simply stated that “due to the serious allegations submitted the files should have been released on time”.

In the circumstances, 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

I note that that certain information relating to individuals other than the applicant was redacted from the record released by the Defence Forces. Having been given an opportunity to clarify what particular aspects of the decision he was unhappy with, the applicant did not indicate that he was unhappy with the redactions made. As such, the redacted information does not form part of this review.

Accordingly, the 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 a statement given by him to a named Comdt. during a ROW investigation and any other records relating to him regarding the ROW.

Preliminary Matter

As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. 

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 that the Comdt. who carried out the ROW investigation was consulted. He confirmed that any statement, either verbal or written, submitted by any witness would have been included in the Investigating Officer’s report. I note this has been partially released to the applicant. I also note that the applicant provided an oral statement to the Comdt. on 7 September 2018 and that the Comdt. finalised his report of his investigation on the same date.

The Defence Forces said that relevant guidance document for processing a ROW does not specifically prescribe that a record be created when an oral statement is given during an investigation but in normal circumstances all statements (written or oral) would form part of the file. The Comdt. said that all administration documents and records of that nature were archived and returned to Ireland at the end of the overseas rotation and would be stored in Military Archives. The Defence Forces provided the details of where the archive material belonging to the named Infantry Battalion is stored. It said that a physical search was carried out in that section for the requested records. It said that no additional handwritten notes relating to the scope of this request were found. The Defence Forces also noted none of the transcripts of interviews involving six Defence Forces personnel are on the ROW file in Military Archives.

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 decision of the Defence Forces to refuse the applicant’s request for a copy of his statement or any other records about the Redress of Wrongs 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