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

25 January 2023

Background

In a request dated 12 September 2022, the applicant, a member of the Defence Forces, sought -�all emails/imails/notes sent or received by the following persons [named]-� concerning any information relating to him between the period August 2021 and September 2022. The applicant provided the rankings and military numbers of the twelve persons listed in the request.

In a decision dated 21 October 2022, the Defence Forces identified six records relating to the applicant-�s request. It withheld all of the records on the basis of section 32(1)(a) of the FOI Act. On 24 October 2022, the applicant applied for an internal review of the Defence Forces-� decision, following which the Defence Forces affirmed its original decision.

On 16 November 2022, the applicant applied to this Office for a review of the Defence Forces-� decision. In his application, he said that he was already in possession of the six records which were withheld by the Defence Forces under section 32(1)(a) of the Act. He also expressed the view that additional records relating to his request existed. In correspondence with this Office, the applicant agreed to remove the records withheld on the basis of section 32(1)(a) from the scope of the review.

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 comments made by the applicant in his application for review and to the submissions made by the FOI body in the course of the review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As noted above, the applicant believes that additional relevant records exist. The Defence Forces-� position is that no further records falling within the scope of his request exist, other than those which it refused under section 32(1)(a) of the Act. This is, essentially, an effective decision to refuse to grant access to further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned solely with whether the Defence Forces-� refusal to release additional records relating to the applicant-�s request under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found within the Defence Forces after all reasonable steps to ascertain their whereabouts have been taken, was justified.

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 role of this Office 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 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 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

During the course of this review, the Investigating Officer sought a submission from the Defence Forces, wherein she asked it, among other things, to provide details of the searches undertaken on the foot of the request and its reasons for concluding that no further relevant records exist.

In its submission to this Office, the Defence Forces said that all Defence Forces-� personnel emails were held on its servers. It stated that -�all deleted, junk, sent and received-� emails to/from @defenceforces accounts are -�kept for perpetuity-�. It also stated that -�a complete and thorough search-� was carried out of the server using the -�comprehensive list of personnel-� specified by the applicant. The Defence Forces said that it carried out searches on the named individuals-� email addresses using -�the applicant-�s name, a variation of his name and his military number-�, which resulted in the records listed in the schedule of records. Essentially, the Defence Forces-� position was that all relevant emails had been identified and considered for release in this case.

However, during the course of this review, the applicant provided this Office with evidence in support of his position that further relevant records other than those identified by the Defence Forces exist. Specifically, he shared a record of an email sent by one of the 12 personnel named in his original request. The record was not listed on the records schedule provided by the Defence Forces, despite having been sent during the relevant time period and containing his name and military number. Following receipt of this record, the Investigating Officer made enquiries with the Defence Forces as to why it had not been identified on foot of the searches carried out, given that it had searched the named individuals-� email addresses using the applicant's name, a variation of his name and his military number.

In response, the Defence Forces clarified that an initial search by its IT section for emails relating to the applicant during the relevant timeframe produced in excess of 4,000 emails. It said that in order to make the request -�feasible-�, the search was confined to the 12 individuals listed therein who either sent or received any correspondence that named the applicant in question. The Defence Forces subsequently clarified that the searches were restricted to emails sent or received between the 12 individuals listed in the request. Accordingly, notwithstanding that the sender of the missing email was one of the individuals named in the applicant-�s request, the email was not located in response to his request, as the recipient of the email was not one of the 12 persons listed.

At this stage, I think it is worth considering the obligations of both requesters and public bodies under the FOI Act in cases such as this. Section 12(1)(b) requires that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps, while section 11(2) requires public bodies to give reasonable assistance to requesters in relation to the making of requests. Therefore, if an FOI body considers that the wording of a request is unclear or ambiguous, it should consider engaging with the requester to clarify the precise scope of the request.

It seems as though while the Defence Forces initially conducted a broad search for records relating to the applicant, which generated over 4,000 emails, it consequently significantly narrowed the search in the manner outlined above. It also seems that the Defence Forces narrowed its search without engaging with the applicant to clarify the extent of the emails of interest to him.

It may be the case that had the Defence Forces proceeded on foot of its original broader interpretation of the request, section 15(1)(c) of the Act may have been relevant. That section provides for the refusal of a request where in the opinion of the head, granting the request would by reason of the number or nature of records involved, cause a substantial or unreasonable interference with or disruption of work to the FOI body concerned. Nevertheless, I am satisfied that the Defence Forces took an unduly narrow interpretation of the request. In my view, any email(s) concerning the applicant, sent or received by any one of the twelve named members, fall within the scope of his request, regardless of whether the corresponding sender/recipient was named in the request. Moreover, while the Defence Forces interpreted the request as one for emails sent or received solely between the 12 named members, it is worth restating that the applicant specified in his request that he was seeking -�allemails/imails/notes sent or received by the following persons-� (my emphasis). On that point, it is also noteworthy that the Defence Forces has confirmed that other records exist which may well, in my view, fall within the scope of the applicant-�s request.

In the circumstances, I am not satisfied that the Defence Forces carried out all reasonable searches in an effort to ascertain the whereabouts of all records coming within the scope of the applicant-�s request. Accordingly, I find that the Defence Forces was not justified in its effective decision to refuse access to additional records on the basis of section 15(1)(a) of the FOI Act.

I consider that the most appropriate course of action to take at this stage is to annul the decision of the Defence Forces, the effect of which is that the Defence Forces must consider the applicant-�s 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 necessary.

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 Act, to additional records coming within the scope of the applicant-�s request and I direct the Defence Forces to undertake a fresh decision making process in respect of the 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.

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Sandra Murdiff
Investigator