Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to further records held by a named Comdt. that relate to the applicant

8 December 2020

Background

The applicant is a member of the Permanent Defence Forces. He attended a number of meetings and engaged in correspondence with a named Comdt. who is a Clinical Psychologist in the Defence Forces. In a request dated 22 July 2020, he requested “any information pertaining to myself including handwritten notes, typed notes and emails or correspondence relating to me” held by the named Comdt. On 30 September 2020, the Defence Forces released three records to the applicant. The records were partially redacted under section 37 of the FOI Act. On 8 October 2020, the applicant sought an internal review of that decision on the ground that the named Comdt. held additional relevant records.

On 2 November 2020, the Defence Forces varied its decision and released 12 further records, three of which contained partial redactions under section 37 of the FOI Act. On 12 November 2020, the applicant sought a review by this Office of the Defence Force’s decision but he did not specify what part of the internal review decision he was unhappy with. He took issue with the fact that all records were not provided in the original decision. He said that the emails were not all replied to and expressed his opinion that the delay was excessive.

On 25 November 2020, the Investigating Officer emailed the applicant to clarify the scope of the review. In response, the applicant alleged that he had not received all notes taken by the named Comdt. and that an email sent by him to the named Comdt. was not replied to. He said the delay receiving his correspondence was excessive. Presumably, this refers to the records released at internal review stage.

During the course of the review, the Investigating Officer provided the applicant with details of the Defence Forces submissions 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 relevant records under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter. In his response of 1 December 2020, the applicant said he believed there are some records missing but he provided no further information as to why he held this view.

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 certain information relating to individuals other than the applicant was redacted from the records 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 further records held by a named Comdt. on the ground that no such additional records exist or can be found.

Preliminary Matters

In his submissions to this Office, the applicant complained about delays by the Defence Forces in responding to his FOI request. The Act provides that FOI bodies shall decide upon an FOI request as soon as soon as may be, but no later than 4 weeks, after the receipt of an FOI request. At the beginning of this year, the Commissioner published his investigation report into compliance by FOI bodies with the statutory timeframes for processing requests. The report is available on www.oic.ie. The Defence Forces was one of five bodies examined as part of this investigation. The Commissioner made a number of recommendations in his report aimed at enhancing compliance with the FOI Act.

While this review, carried out under section 22(2) of the Act, is confined to the decision of the Defence Forces in regard to the records sought by the applicant, I would remind the Defence Forces of its obligations concerning the statutory timeframes provided in the Act.

In his submissions, the applicant stated that the Comdt. did not reply to his emails. While it is unclear which emails the applicant is referring to, this Office has no role in pursuing the applicant’s complaint about any failure by the Defence Forces to reply to his emails. 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 mental health files of patients under the care of the named Comdt. are confidential files and kept in her office in a locked cabinet. She confirmed she is the only person who uses the office. It said that files can be shared with a mental health team member i.e. Defence Forces consultant psychiatrist or civilian clinical psychologist as part of transference of care following the multidisciplinary team approach.

The Defence Forces said the named Comdt. carried out electronic searches on her email using the applicant’s name. The named Comdt. said she did not believe any records had been destroyed. She conducted a physical search of her files to locate any records. The named Comdt. stated that the only other email correspondence she has relating to the applicant, apart from correspondence with him, is in relation to the processing of this FOI request.

It is, in essence, the Defence Force’s position that no further relevant records 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 applicant 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, and in the absence of evidence to suggest that additional relevant records should exist, 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 further records on the ground that no further 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 access to further records under section 15(1)(a) of the FOI Act on the ground that no further 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