Whether the Defence Forces was justified in refusing access to records between the applicant, Air Corp Headquarters (ACHQ), a named unit within the Air Corp (AC), a named Commandant and a named third party GP under sections 15(1)(a) and 37 of the FOI Act

18 May 2021

Background

The applicant is a member of the Air Corps who has made a large number of FOI requests to the Defence Forces regarding different matters. In a request dated 3 November 2020, he made a request for all correspondence between himself and a specific unit where he worked, ACHQ, a named Comdt. and a named third party GP. The named Comdt. is a medical officer in the Air Corps.

In a decision dated 1 February 2021, the Defence Forces granted partial access to five records, comprising an email thread between the medical officer and other staff members of the Defence Forces. The records appear to have been located by the named Comdt. and not the other recipients. The Defence Forces redacted some information under section 37 on the ground that it is personal information relating to third parties. In the schedule of records, the Defence Forces described the five records as falling within the category of “all correspondence in relation to [the applicant] between” his unit and the named Comdt.

Furthermore, it said that it was refusing access to records of “all correspondence in relation to [the applicant] between ACHQ”, the named Comdt. and the third party GP under section 15(1)(a) on the ground that no relevant records exist or can be found. The Defence Forces further outlined that searches had been carried out at ACHQ, the named unit, Air Corps MAP and the Central Medical Unit records department.

On 3 February 2021, the applicant sought an internal review of that decision. On 1 March 2021, the Defence Forces affirmed its decision under sections 15(1)(a) and 37 of the FOI Act. On 9 March 2021, the applicant sought a review by this Office of that decision.

At the time, this Office was already reviewing a decision taken by the Defence Forces on a separate request made by the applicant (case OIC-101063 refers) which overlaps in part with this application under review. In that case, the applicant primarily sought a statement of reasons, under section 10, relating to a decision taken by the named Comdt. concerning the applicant’s sick leave. However, he also sought “[a]ny information/emails or handwritten notes relating to [him] on this”. During the processing of both reviews, it became clear that there was an overlap in the scope of the requests. As a result, the applicant withdrew his application in case OIC-101063 and is pursuing access to records in one application.

I have now completed my review of the Defence Force’s decision and have decided to bring the case to a close 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 Department was justified in redacting, under section 37 of the Act, certain parts of records of correspondence between the applicant, a specific unit where he worked, ACHQ, a named Comdt. and a named third party GP, and in refusing access, under section 15(1)(a), to any further relevant records on the ground that no such records exist or can be found.

Analysis and Findings

Section 37

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the applicant. The information redacted from the records at issue in this case comprises the names and email addresses of Defence Forces staff members.

For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including “(iii) information relating to the employment or employment history of the individual”.

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph I of the definition provides that where the individual is or was a staff member, the definition does not exclude the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

In correspondence with this Defence Forces, the Investigating Officer drew the attention of the Defence Forces to the exclusion at Paragraph I and queried whether the redacted names were those of staff members. In its submissions to this Office, the Defence Forces confirmed that the redacted names were those of staff members. It agreed that the redacted information should have been released to the applicant. As such, I find that the exclusion applies and that the names, are not personal information within the meaning of the Act. I am satisfied that section 37 does not apply and that the redacted names should be released.

Section 15(1)(a)

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. During the course of the review, it became apparent that there was some confusion as to the precise nature of the records sought in this case.

It seems to me that the wording of the request in this case is ambiguous and is open to different interpretations. One possible interpretation is that the request is for correspondence the applicant had sent to, or received from, the named unit and other individuals. Another interpretation is that the request included correspondence between the named unit and other individuals relating to the applicant.

It appears, on its face that the Defence Forces took the broader interpretation, given that the records released comprised correspondence between the applicant’s unit and the named Comdt. However, when this Office sought details of the searches undertaken in an effort to locate all relevant records, the response of the Defence Forces suggested that no searches were undertaken for records of correspondence with the applicant on the ground that he already had such records. Indeed, the Defence Forces suggested that it might be appropriate to remit the request so that it could consider it afresh.

In the circumstances, it seems to me that I cannot find that the Defence Forces was justified in refusing to grant access to any further relevant records under section 15(1)(a). I would note that if the Defence Forces locates relevant records that it considers to have been released previously, it is open to it to consider if section 15(1)(i) applies.

For the benefit of both parties, I would add that under section 12(1)(b), a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. On the other hand, section 11(2) requires public bodies to give reasonable assistance to requesters in relation to the making of requests. Therefore, if a body considers that the wording of a request is unclear or ambiguous, it should consider engaging with the request to clarify the precise scope of the request.

If the applicant is seeking access to specific records relating to a specific mater, it would be helpful if he could provide relevant details in his request, such as the subject matter of the records sought and a possible time-frame within which the records would have been created. It is also important to state that while the FOI Act demands that FOI bodies meet very high standards in dealing with requests, this Office also takes the view that the legislation assumes reasonable behaviour on the part of requesters.

In the circumstances, it may be useful for the Defence Forces and the applicant to engage further in the first instance before the request is considered afresh with a view to coming to an agreement on the precise nature of the records he deems to be outstanding and to which he is seeking access.

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 release the staff information it redacted from the emails released. I also direct the Defence Forces to conduct a new decision-making process on the applicant’s request for further relevant records.

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