Whether the Defence Forces was justified in refusing to provide the applicant with a statement of reasons as to why he was recommended for a certain specified course but not another specified course on the ground that no such refusal occurred, whether it was justified in redacting certain information from the records released under section 37(1), and (iii) whether it was justified in refusing access to any other relevant records under section 15(1)(a) of the FOI Act

20 August 2021

Background

The applicant is a member of the Defence Forces. In a request dated 7 July 2020, he sought

i. “… the reasons and decisions why I was recommended for the Sheet Metal Structural Repair Course but not the AW139 Maintenance Course (AW139) …” and

ii. “… any information/emails or handwritten notes relating to me on this”.

The Defence Forces refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found. In essence, its position was that it had no record of the applicant having applied for the AW139 maintenance course. The applicant subsequently sought a review by this Office of the decision taken by the Defence Forces on his request. In my decision of 7 December 2020 in cases OIC-98411 and OIC-98243, I found that while the Defence Forces had taken all reasonable steps to locate records relating to the AW139 maintenance course and that no such records could be found, it had failed to search for records relating to the sheet metal structural repair course that I accepted to be captured by the request. I also found that the Defence Forces had failed to properly consider the application for a statement of reasons. I annulled the decision of the Defence Forces and remitted the matter to it for consideration afresh.

On 15 February 2021, the Defence Forces issued a fresh decision on the request. It released a number of records it deemed relevant to the request including two records relating to the structural repair course, with the redaction of a small amount of information from three records on the ground that the redacted information comprised personal information relating to third parties. In relation to the statement of reasons sought, it said that as no record of an application for the AW139 Maintenance Course could be located it was not possible to provide a statement of reasons.

On 23 February 2021, the applicant sought an internal review of that decision. On 12 March 2021, the Defence Forces issued its internal review decision wherein it said that the reason why the applicant was “not recommended for AW139 maintenance course was that no evidence of any course application submitted by [him] for this course was found during the search for documentation and therefore no expression of interest was logged by the Air Corps”.

On 25 March 2021, the applicant sought a review by this Office of that decision, wherein he argued that records relating to the AW139 maintenance course should exist as he allegedly submitted the application on the same day as the application for the structural repair course.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the Defence Forces and the applicant, and to the communications between this Office and both the applicant and the Defence Forces on the matter.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with (i) whether the Defence Forces has complied with the provisions of section 10 of the Act in relation to the application for a statement of reasons, (ii) whether it was justified in redacting certain information from the records released under section 37(1), and (iii) whether it was justified in refusing access to any other relevant records under section 15(1)(a) of the FOI Act.

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. Neither does this Office's remit extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought.

Analysis and Findings

Section 10

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.

The applicant argued that the Defence Forces recommended him for a structural repair course but not the specified maintenance course. In essence, the act for which a statement of reasons is sought, therefore, is the refusal of the Defence Forces to recommend his application for the maintenance course.

In its submissions to this Office, the Defence Forces argued that no act within the meaning of section 10 occurred as it has no record of an application from the applicant for the relevant maintenance course. The applicant is adamant that he did, indeed, apply for the course. Nevertheless, as I have outlined above, I found in cases OIC-98411 and OIC-98243 that the Defence Forces had taken all reasonable steps in an effort to locate records relating to the maintenance course and that no relevant records could be found.  In circumstances where no evidence has been presented to me to support the applicant’s contention that the Defence Forces refused to recommend an application for the maintenance course, I find that it was justified in refusing to provide a statement of reasons for such a refusal on the ground that there is no evidence to suggest that the act identified occurred.

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. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether the 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 must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

As I have previously found, in cases OIC-98411 and OIC-98243, that the Defence Forces had taken all reasonable steps in an effort to locate records relating to the maintenance course, I do not propose to consider this matter again here. As I explained above, I remitted the matter in that previous decision based on my finding that the Defence Forces had failed to search for records relating to the sheet metal structural repair course. Relevant records have since been released to the applicant and he has not argued that further relevant records relating to that course should exist. Rather, his arguments concerning the existence of additional records are based solely on his assertion that he applied for the maintenance course, for which no records have been found.

In the circumstances, I am now 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 apart from those already released on the grounds that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 37

The Defence Forces redacted certain information from three of the records released, namely records 1, 5 and 6. Records 5 and 6 were created in the course of the processing of the applicant’s request and the subsequent reviews. As such, they do not fall within the scope of his original request as they did not exist at the time. Accordingly, I will not consider those records any further. Nevertheless, I understand the Defence Forces is willing to release those records with the inclusion of the names of members of the Defence Forces that had been redacted when first released.

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 only information redacted from record 1 is an ID number of a member of the Defence Forces. In its submissions, the Defence Forces said it considers such information to be personal information regarding an individual’s employment history. It said that the ID number can be used to access an individual’s employment records and history. It said the individual to whom the information belongs has not given his consent to the disclosure. I accept that section 37(1) applies to the information at issue and that none of the other provisions of section 37 serve to disapply the exemption. I find that the Defence Forces was justified in redacting the ID number under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of the Defence Forces in this case.

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