Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the FOI Act, to a copy of reports/investigations in relation to a shooting incident in Portlaoise Prison on 18 May 1988 on the ground that no relevant records could be found

10 June 2021

Background

In a request dated 24 October 2020, the applicant sought a copy of reports/investigations in relation to a shooting incident in Portlaoise Prison on 18 May 1988. In a late decision dated 15 February 2021, 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.  The applicant sought an internal review of that decision, following which the Defence Forces affirmed its original decision.  On 26 April 2021, the applicant sought a review by this Office of the refusal of his request.

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 communications between the Defence Forces and the applicant referred to above and to communications between this Office and the Defence Forces on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Defence Forces was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for a copy of reports/investigations in relation to a shooting incident in Portlaoise Prison on 18 May 1988 on the ground that no relevant records exist or could be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

During the course of the review, this Office requested submissions from the Defence Forces about the searches it had undertaken to locate the records sought by the applicant. In response, the Defence Forces informed this Office that further documents had been located in two separate locations following its further inquiries.

The review before this Office relates to the decision of the Defence Forces to refuse the request under section 15(1)(a) of the Act on the basis that no relevant records could be found. However, as it has since acknowledged that certain relevant records have been located, I have no option but to find that the Defence Forces was not justified in refusing the applicant’s request under section 15(1)(a) of the Act.  Nevertheless, I do not consider it appropriate for this Office to simply direct the release of the located records in circumstances where no consideration has been given by the Defence Forces as to whether or not they should be released. I note, for example, that some or all of the records were created before the effective date of the FOI Act (21 April 1998 in the case of the Defence Forces). The right of access provided for in the Act does not apply to records created before the effective date, except in limited circumstances described in section 11(5) of the Act.

In the circumstances, I consider that the appropriate course of action to take is to annul the decision of the Defence Forces to refuse the applicant’s request under section 15(1)(a) of the Act, the effect of which is that it must consider the request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Defence Force’s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Defence Forces to refuse access, under section 15(1)(a) of the FOI Act, to a copy of reports/investigations in relation to a shooting incident in Portlaoise Prison on 18 May 1988. I direct the Defence Forces to conduct a fresh decision-making process in respect of the applicant’s request.

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