Whether the Defence Forces was justified in refusing access to further records relating to the applicant held by named individuals under section 15(1)(a) of the FOI Act

20 May 2022

Background

This case has its background in two previous decisions I issued, cases OIC-58250 and OIC-106795 refer. In case OIC-58250, the applicant had submitted a request (Request A) to the Defence Forces that it refused under section 15(1)(c) of the Act, which is essentially concerned with the refusal of voluminous requests, on the ground that its initial searches had identified 571 emails. The applicant submitted a refined request (Request B) following which the Defence Forces released 22 emails, in whole or in part. The applicant was not satisfied that all relevant records had been located and he sought a review by this Office of the decision of the Defence Forces.

In my decision, I noted that the searches conducted by the Defence Forces in response to Request A that had returned 571 emails were based on the individuals named in that request and the time-frame specified. However, when processing Request B, the Defence Forces had used different, precise search terms in its email search in an effort to identify relevant records. I found that the Defence Forces could reasonably have been expected to conduct a similar search to the one undertaken in respect of Request A, based on the reduced number of individuals and the reduced time-frame. I therefore annulled the decision of the Defence Forces and directed it to process Request B afresh.

The background to case OIC-106795 is that, in essence, following engagements between the parties, the Defence Forces essentially reconsidered Request A and refused it under section 15(1)(c), notwithstanding the fact that I had directed it to consider Request B afresh. I found that it was not justified in refusing the request under section 15(1)(c). I annulled the decision and remitted the case back to the Defence Forces for a second time. I directed it to conduct searches for records coming within the scope of request B similar to the ones undertaken in respect of Request A, based on the reduced number of individuals and the reduced time-frame set out in request B, with a view to determining how many of the 571 emails initially located were captured by the refined request. I issued that decision on 3 December 2021.

The Defence Forces failed to issue a fresh decision on the remitted request and the applicant sought an internal review of the deemed refusal of the request on 14 January 2022. Yet again, the Defence Forces failed to issue a decision within the required timeframe. The applicant contacted this Office, following which I issued a section 45 notice requiring the Defence Forces to set out its position on the request within 7 days. The Defence Forces issued its position on the matter 24 March 2022 wherein it released a number of further records to the applicant. The applicant subsequently applied to his Office for a review of that decision on 25 March 2022 as he was not satisfied that all relevant records had been identified for release.

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 relevant submissions in cases OIC-58250 and OIC-106795, insofar as they are relevant to this review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Defence Forces was justified in its decision to refuse access, under section 15(1)(a) of the Act, to any further records coming within the scope of Request B on the ground that no further records exist or could be found after all reasonable searches were undertaken.

Analysis and Findings

Section 15(1)(a) of the 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. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means 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 also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�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.

Request A, that the applicant submitted on 5 February 2019, was for

(i) Any and all correspondence or emails pertaining to him sent or received by six named members of a named unit (unit A) from 26 September 2012 to 30 August 2014

(ii) Any and all correspondence or emails pertaining to him sent or received by four named members of another named unit (unit B) during that same period

(iii) Any and all correspondence or emails pertaining to him sent or received by a named member of a medical unit during that same period.

Following the decision of the Defence Forces to refuse that request on the ground that examining the 571 emails located would cause a substantial and unreasonable interference with, or disruption of, its work, the applicant submitted refined Request B. He reduced the number of individuals involved and the timeframe. He identified four members of unit A, three members of unit B, and the same member of the medical unit. He narrowed the timeframe to 1 January 2013 to 30 August 2014. He said the records sought pertain to a number of specified matters, namely;

• His medical condition,
• His regimental duties,
• His redress,
• His detachment to unit B,
• His movement to a named barracks on a work detail,
• His fitness test, and
• His medical disposal.

In its submissions to this Office, the Defence Forces provided details of searches carried out to locate records. It appears that at some stage during the first review in 2019, the category -�Old Files MP HQ [named Brigade]-� was added. Despite the clear direction I gave in case OIC-106795, the Defence Forces carried out searches of all the individuals named in request A (six members of Unit A, four members of Unit B and the same member of the medical unit) but used the seven categories listed above and -�Old Files MP HQ [named Brigade]-� and with the amended timeframe as set out in request B.

The Defence Forces explained unit J6 is responsible for carrying out searches on email servers. It said unit J6 used the -�search parameters, names and dates-�which [the applicant] gave and-�conducted a search of each individual mentioned-�. A total of 555 emails were located and each email, along with any attachments, were examined to determine if the contents related to the applicant.  It said that of the 555 emails, only 3 related to the applicant. The Defence Forces explained that the difference in the 571 records initially identified in Request A and the 555 records identified in Request B is due to the timeframe as amended by the applicant on 7 May 2019. The Defence Forces said that the emails stored on the servers contain all emails in sent, received, junk or deleted folders. It said that a search carried out by J6 is more thorough than that carried out by individuals as circumstances may arise where emails and/or folders have been deleted. It said that all emails are stored on servers for perpetuity.

It is important to note that at no time during its processing of the various reviews has this Office had cause to consider whether all reasonable searches had been carried out by the Defence Forces in respect of Request A when 571 emails were returned. As I have outlined above, my concern in case OIC-58250 was that the Defence Forces had not taken all reasonable steps to locate records coming within the scope of request B as it had used limited search terms and had not carried out similar searches as had been undertaken in respect of Request A.

What I must consider in this case is whether the Defence Forces has taken all reasonable steps to locate relevant records coming within the scope of Request B. While I fully acknowledge that the Defence Forces reverted to the search terms used when considering Request A, it seems to me that the search terms are still overly restrictive. I appreciate that the use of precise terms is necessary for electronic searches of emails. However, I do not consider that the applicant confined his request to the exact phrases in the eight matters he specified in Request B but rather indicated that he was seeking records relating to him regarding those matters.

Following receipt of the Defence Forces submissions, the investigating officer queried whether the applicant's name, a variation or it and/or his military number were used as search terms. The Defence Forces confirmed that the applicant's name was not used as a search term. It said that email accounts belonging to the individuals named in the applicant's request were searched using the terms he provided.

It seems to me that one of the most fundamental searches that should be undertaken where members of the Defence Forces seek records relating to themselves are searches using the requester name and/or other identifiers by which they may be referenced, such as military number.

In the circumstances, I believe I have no alternative but to find that the Defence Forces was not justified in relying on section 15(1)(a) of the Act to refuse to grant access to any further relevant records. I appreciate that the applicant will be disappointed that this case remains unresolved to date but I see no alternative other than to remit the case back to the Defence Forces yet again, in light of its failure to take all reasonable steps to locate all relevant records, i.e. it failure to undertake searches of the relevant email accounts using the applicant's name, any relevant variations, or his military number.

For the sake of completeness, I should add that during the course of the review, representatives from this Office had a constructive meeting with relevant members of the Defence Forces to discuss general issues arising in its processing of requests and to offer advice as to how the processing of requests might be improved. I expect that the Defence Forces will process the remitted request in this case in accordance with the Guidance this Office has published on its website on section 15(1)(a) at www.oic.ie.

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 it to conduct a fresh decision making process on the applicant's Request B. I direct it to identify and use those search terms that are likely to be of benefit when conducting the email searches with a view to identifying all relevant records coming within the scope of Request B, having regard to my comments set out in this decision.

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