Whether the Defence Forces was justified in refusing access to records relating to the applicant under sections 15(1)(a) and 31(1)(a) of the FOI Act

18 November 2022

Background

The applicant is a serving member of the Defence Forces. She previously made a separate FOI request to Defence Forces seeking access to a range of records regarding decisions relating to the completion and grading of her annual performance appraisal in the context of her maternity leave. The Defence Forces FOI Unit engaged with her and requested she provide specific search terms and indicate what individuals might hold records. The applicant agreed to provide the requested information and the Defence Forces processed the request on that basis. The search terms included her surname, maternity leave and AF451. The Defence Forces released some records and refused others under section 31(1)(a) of the FOI Act on the basis that the information was legally privileged. The applicant wrote to the FOI Unit and indicated that she had sight of a record which was not listed in the schedule of records or released to her. The Defence Forces informed her that as the exact search term was not in subject of the email, it was not identified as part of the electronic searches.

She was told that for this record to be captured by searches, she would have to make a fresh FOI request. As a result of this the applicant duly made a fresh FOI request for emails stored on Defence Forces servers of email correspondence between a number of named individuals from 12 October 2020 and 31 December 2020. She provided variations of her name and rank as relevant search terms. Due to an internal ICT issue with the search function on the email server, the parties agreed that the searches would be carried out by the individuals on their own email accounts rather than on the server.

On 20 September 2021, the Defence Forces refused the request under sections 15(1)(a) and 31(1)(a) of the Act. On 21 September 2021, the applicant sought an internal review of that decision. She also asked why no searches were carried out on a named individual-�s records. I understand that the named individual was on leave at the time and his emails were unavailable. On 2 November 2021, the Defence Forces affirmed its refusal of the request. It also refused access to emails that had not been located during the initial processing of the request, again under sections 15(1)(a) and 31(1)(a). On 2 November 2021, the applicant sought a review by this Office of the decision of the Defence Forces.

During the course of the review, the Investigating Officer provided the applicant with details of the Defence Forces-� submission wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records exist or could be found, i.e. that section 15(1)(a) applies. She also outlined her opinion that the records withheld under section 31(1)(a) were exempt from release and invited her to make a submission on the matter. The applicant responded indicating she did not accept this position.

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 as set out above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the withheld records. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with solely with whether the Defence Forces was justified in refusing access, under sections 15(1)(a) and 31(1)(a) of the Act, to records relating to the applicant held by a number of named individuals.

Preliminary Matters                                                                                                         

The applicant is clearly frustrated with how the Defence Forces handled her FOI requests and also with how it dealt with the substantive issue regarding her performance appraisal. In relation to the substantive issue, it is important to note that 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.

I would, however, like to comment on the manner in which the Defence forces dealt with the applicant in respect of the processing of her FOI requests. It seems to me that had the Defence Forces properly processed the applicant-�s first request, it would not have been necessary for her to make further requests. I accept that under section 12(1)(b) of the Act, a request for records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. However, this does not mean that the Defence Forces is entitled to insist that a requester should provide specific search terms for searches of electronic records when making a request.

While I fully accept that it is often the case that a requester may be in a position to clarify a request which will help the FOI body to determine what searches might be needed to locate the records sought, it is entirely unreasonable, in my view, for an FOI body to require a requester to provide such detailed information as the precise search terms to be used in its searches for electronic records. I would expect that the FOI body that holds the electronic records would have a far greater understanding of how it stores its electronic records and should be in a much stronger position to decide what searches of its email systems and accounts should be undertaken to locate the records sought. While a certain amount of clarification with a requester on the nature of the searches to be conducted may be reasonable and indeed sensible, I find that the level of specificity requested from the applicant in this particular case was not appropriate.

Moreover, it was inappropriate, in my view, for the Defence Forces to refuse part of the request for such a lengthy period based solely on the fact that a named member of staff was unavailable to search his/her email account. I assume the Defence Forces has the capability to conduct searches of an email account in the absence of a staff member. The FOI Act has strict timelines that must be adhered to when processing requests and it is incumbent on the Defence Forces to seek to adhere to those timelines where reasonably possible.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) provides that an FOI body may refuse to grant a request where 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 means that the Commissioner must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence is -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

During the course of this review, the investigating officer wrote to the Defence Forces asking it to make submissions on the searches carried out to locate records. In response, the Defence Forces said that all searches were carried out on the listed individuals-� PCs. It explained that they searched their email inbox, sent items, drafts, archive, junk and deleted items. Searches were carried out by computer by each individual listed in the request. It outlined that emails are held on the PC and not filed away as a hard copy. The Defence Forces said that if an email was printed and filed away it would still be on the PC and show when the search was conducted using the relevant keywords provided by the requestor.

Each search was carried out by using the keywords/search parameters given by the applicant. The relevant time frame of the search was in respect of the dates provided by the applicant in her request. It said that no records coming within the scope of the request other those refused under section 31(1)(a) could be found.

I note that when the Investigating Officer provided the applicant with details of the searches undertaken by the Defence Forces in this case, the applicant-�s response outlined that she did not believe that one of the individuals carried out adequate searches and said that his records ought to be searched on the server. As I have indicated above, I understand that due to an internal ICT issue with the search function on the email server, the parties agreed that the searches would be carried out by the individuals on their own email accounts rather than on the server. In the circumstances, I do not consider it appropriate to find that the searches undertaken in this case were deficient on the basis that t did not search for records on the server. If the applicant considers that additional relevant records are held on the server, it is open to her to make a fresh request for such records.

Having regard to the details of the Defence Force-�s submissions, I find that it has taken all reasonable steps in an effort to locate the records sought in this case. Accordingly, I find that the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to further relevant records on the ground that no such records exist or can be found.

Section 31(1)(a)

Section 31(1)(a) provides for the mandatory refusal of a request where the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege) and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office considers that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence that results from the original request for advice.  We have adopted this approach having regard to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522:

 "Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice.  In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach." 

In her submissions to this Office, the applicant argued that the correspondence withheld is merely a request made by her through her supervisor on how to complete the AF451. She said it was not made by a client and his legal advisor but by her supervisor using the military chain of command. The Defence Forces said the records withheld under section 31(1)(a) were sent for the purpose of obtaining legal advice to assist decision making or for the purpose of providing legal advice.

In light of the requirement of section 25(3) of the Act, that I must take all reasonable precautions in a review to prevent the disclosure of exempt information, I believe that I am not in a position to give a full explanation for my findings on this matter. All I can say is that having examined the contents of the records at issue, I am satisfied that they comprise a request for, and receipt of, legal advice and a related continuum of correspondence. I find that the Defence Forces was justified in refusing access to the records sought under section 31(1)(a) of the act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces. I find that the Defence Forces was justified in refusing access, under section 15(1)(a) of the act, to further relevant records on the ground that such records do not exist or cannot be found after all reasonable steps have been taken to locate them. I further find that the Defence Forces was justified in refusing access, under section 31(1)(a), to certain records identified as coming within the scope 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