Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant held by a number of named staff on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

16 December 2022

Background

This case stems from an FOI request submitted to the Defence Forces in 2019 by the applicant, a former member of the Defence Forces. That request has resulted in three previous decisions by this Office, OIC-58250, OIC-106795 and OIC-121212 refers, all three of which we annulled for various reasons for fresh consideration by the Defence Forces. I issued my third decision on the matter on 20 May 2022. 

The original request was for the following;

1. 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
2. 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
3. Any and all correspondence or emails pertaining to him sent or received by a named member of a medical unit during that same period (Request A).

He subsequently refined his request by reducing 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.

During its processing on the earlier requests, the Defence Forces had released 22 emails, in whole or in part. Following receipt of my decision of 20 May 2022, the Defence Forces issued a fresh decision on 30 June 2022. It released 14 additional records and redacted some third party information that it deemed to fall outside the scope of the request. On 14 July 2022, the applicant sought an internal review of that decision. On 19 August 2022, the Defence Forces varied its decision. It released some information that had previously been redacted under section 37(1) of the Act. It also refused some information on the grounds that section 33(2) applies. In relation to correspondence by the named doctor, the Defence Forces relied on section 15(1)(a) i.e. that no further records exist or can be found after all reasonable searches have been carried out. The applicant sought a further review by this Office of that decision.

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 submissions made by the Defence Forces in support of its decision and to the applicant-�s communications with this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

Although the Defence Forces withheld some information under sections 32 and 37 of the Act, the applicant indicated he was not seeking a review of the refusal to provide the withheld information but rather was of the opinion that further relevant records exist. Therefore, 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 the applicant-�s request on the ground that no further records exist or can be found.

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.

As I have outlined above, the Defence Forces provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no further records exist or can be found. In summary, the Defence Forces said that all electronic records are retrievable by the IT section through accessing the relevant servers. It explained that all Defence Forces emails are stored on servers for perpetuity. There are also back up servers. It said it searched all email accounts using the email addresses of the individuals named by the applicant. It explained that searches were carried out on all emails that have been sent, received, deleted or were in the junk folder.

The Defence Forces said it used the following search terms -�Cpl X-�, -�[the applicant-�s forename and surname]-�, -�[abbreviation forename surname]-� and -�[applicant-�s military number]-� in electronic searches. It said that this search produced 14 records which were released to the applicant. One record was granted in full and the remaining 13 granted in part with information redacted under section 37(1) of the Act.

On the matter of hard copy records, the Defence Forces said the records provided pertained to a redress of wrongs submitted by the applicant and the records were provided by the Grievance Management Office in Defence Forces HQ. It said searches were conducted in the Central Medical Unit, Defence Forces HQ and 2 Bde HQ based in Cathal Brugha Barracks and no further records within the scope of the request were located.

In correspondence with this Office, the applicant said certain correspondence is missing. For example, he said two of his supervisors/managers required clarification from a medical professional regarding his designation as -�office work only-�. The applicant said he was verbally informed by one of his supervisors that the supervisor had been in communication with the doctor and the Chief Medical Officer regarding his medical disposal but that this communication was not provided. He also said correspondence regarding a particular form, AF236 was not released.

The applicant further queried why it was the case that if 555 emails were identified on foot of the processing of the previous requests using the refined search criteria, only 14 were released. He asked why 541 emails were withheld. It appears that the 555 emails in case OIC-121212 were identified using the generic search terms provided by the applicant and were then manually examined to identify whether they related to the applicant. It is unfortunate that this initial search result has caused considerable confusion between the parties to this review. However, given the broad nature of the terms, such as Cathal Brugha Barracks, it is understandable why so many records were identified. When these documents were then examined the vast majority were found to be outside the scope of the request and completely unrelated to the applicant. Given the wording of the Defence Forces decisions it is understandable why the applicant was given to understand that the 555 records related to him, especially as the Defence Forces previously relied on section 15(1)(c) to refuse the request in previous reviews, which is concerned with the refusal of what can be generally described as voluminous requests.

It is also unfortunate that specific records regarding particular decisions and/forms were not located during searches. However, it is important to note that the Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request or to continue searching indefinitely for records that cannot be found. The question I must consider is whether the Defence Forces has taken all reasonable steps to ascertain the whereabouts of the records sought. In this case, I consider that, at this stage, it has.

The Defence Forces carried out searches on the named individual-�s email addresses using the applicant-�s name, a variation of his name and his military number. It previously carried out searches using specific generic search terms and manually examined those records to determine if any related to the applicant and were within the scope of his request. In the circumstances, it is not apparent to me what further searches the Defence Forces could reasonably have been expected to take to locate further relevant records. Given the broad search terms including variations of the applicant-�s name including rank and military number, I consider it likely that if further records existed they would likely have been captured by those search terms.

In the circumstances, having regards to the details of the searches undertaken, I am satisfied the Defence Forces has taken all reasonable steps to ascertain the whereabouts of the records sought. Accordingly, I find that the Defence Forces was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for additional relevant records on the grounds that no such records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse access, under section 15(1)(a) of the FOI Act, to further relevant records relating to the applicant held by the named individuals on the grounds that no further relevant records exist or can be found.

Senior Investigator
Stephen Rafferty