Whether the Defence Forces was justified, under section 15(1)(a) of the FOI Act, in refusing access to information about various promotion competitions on the ground that records do not exist that contain the information sought by the applicant

20 November 2023

Background

In a request dated 31 January 2023, the applicant sought the following information about promotions within the Defence Forces:  

a. How many individuals with just five years' service in the rank of Comdt. got promoted in the Line Comdt. To Lt Col Promotion Competitions since 2012?

b. How many individuals jumped five years' seniority in the Line Comdt. To Lt Col Promotion Competitions since 2012? The seniority period is in relation to the cadet class from which the greatest number of officers were promoted in that competition.

c. How many individuals jumped four years' seniority in the Line Comdt. To Lt Col Promotion Competitions since 2012? The seniority period is in relation to the cadet class from which the greatest number of officers were promoted in that competition.

d. How many individuals jumped three years' seniority in the Line Comdt. To Lt Col Promotion Competitions since 2012? The seniority period is in relation to the cadet class from which the greatest number of officers were promoted in that competition.

e. How many individuals jumped two years' seniority in the Line Comdt. To Lt Col Promotion Competitions since 2012? The seniority period is in relation to the cadet class from which the greatest number of officers were promoted in that competition.

In a decision dated 23 February 2023 the Defence Forces refused the applicant's request under section 15(1)(a) of the Act. It stated that the Commissioned Officers Management Office (COMO) does not hold any records as described by the applicant. On 9 March 2023, the applicant requested an internal review on the Defence Forces decision. On 5 April 2023 the Defence Forces upheld its original decision under sections 15(1)(a) of the Act and also stated that 15(1)(c) of the Act applied as it considered the request to be voluminous. On 18 April 2023, the applicant submitted an application for review to this Office of the Defence Forces' decision. The applicant stated that he is being refused information that highlights systematic discrimination against Direct Entrant Technical Officers.

During the course of this review, the Investigating Officer sought submissions from the Defence Forces in support of its decision to refuse records under section 15(1)(a) and 15(1)(c). The Defence Forces provided this Office with submissions. It said section 15(1)(c) is not applicable to this case as the records requested currently do not exist and would require the creation of a new record. The Investigating Officer provided the applicant with a summary of the Defence Forces' submissions and invited him to comment on the matter which he duly did. The Investigating Officer subsequently sought clarification from the Defence Forces in respect of the applicant's comments.

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 referred to above, including the submissions made by both parties. 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 refusing, under section 15(1)(a) of the FOI Act, the applicant's request for the information he sought relating to the various promotion competitions outlined in his request on the grounds that no record exist or can be found that contains the information sought.

Preliminary Matters

During the course of this review, the applicant commented on what he believes is systemic discrimination within the Defence Forces. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, including its internal promotion competitions, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.                                                                                                          

It is also important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.

Analysis and Findings

Section 15(1)(a) of the FOI 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. Our 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 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 consist 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 Act does not require FOI bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Section 17(4) provides that where a request relates to data contained in one or more record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. Section 17(4) defines reasonable steps as steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body.

If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, it is entitled to refuse the request under section 15(1)(a) on the ground that the record sought does not exist. The question I must consider in this case, therefore, is whether the Defence Forces was justified in finding that it does not hold records containing the specific information sought and/or that it cannot search for and extract the relevant electronically held records by taking reasonable steps.

In its submission, the Defence Forces stated that the Commissioned Officers Management Office (COMO) hold Officer Promotion competition files in hard copy and no other area of the Defence Forces has access to the records and there are no electronic records or backups. The Defence Forces said that a promotion order of merit list contains the service number, rank and name of the candidates and there is no other personal information listed.

The Defence Forces said that therefore, with reference to part (a) of the applicant's FOI request, "How many individuals with just 5 years' service in the rank of Comdt got promoted in the Line Comdt to Lt Col Promotion competition since 2012?"�, COMO were unable to establish from the promotion file the number of years' service in the rank of Commandant each individual had reporting for interview. It said that in order to establish the service of each of the candidates listed for promotion, it would have to create a new record. It further stated that the information requested is held in hard copy personnel files (stored in COMO) and on a shorter electronic personal CV AF108 document. It said that it would require an examination of each individual's service at the exact date/time of interview throughout the 10- year period of the query. The Defence Forces said it has no system for the organizing of the information in a way that a record fulfilling the applicant's request could be created by taking reasonable steps per the provisions of section 17(4).

Similarly, in relation to parts (b) "� (e) of the applicant's request, the Defence Forces said that this information is not contained in the promotion competition file and would also require the creation of a new record. It said that COMO would have to interpret who the most "�senior' of the group were promoted i.e. the cadet class from which the greatest number of officers were promoted in that competition. The Defence Forces said that cadet class graduation is not a reliable source of "seniority"� in the Defence Forces. It said that Officers who progress to the rank of Commandant must sit a Captain to Commandant interview, and therefore to answer the questions (b) "� (e) would require an examination of each individual's date of promotion to the rank of Commandant. It said it would also require an examination of each candidate's service at the exact date/time of their interview throughout the 10-year period of the query. The Defence Forces stated that it has no system for the organising of the information in a way that a record fulfilling these parts of the applicant's request could be created by taking reasonable steps.

As noted above, the Investigating Officer provided details of the Defence Forces' submissions to the applicant and invited him to make further comments. In his submissions, to this Office, the applicant said that the Officer Corps of the Defence Force comprises a small cadre of personnel, identified by distinctive army numbers that serve as markers of their identities and encapsulate their relative seniority within the organisation. He said, this practice, rooted in time-honoured military tradition and underpinned by administrative efficiency, provides a transparent, unequivocal hierarchy and a career advancement trajectory. He said, the Defence Force is characterised by a tightly-knit and information-rich milieu, which ensures widespread knowledge and recognition of any instances where officers circumvent the regular seniority progression. The applicant said, the COMO meticulously maintains an archive of promotional competitions, incorporating granular details such as army numbers and associated Cadet Classes. The applicant also said a few exceptional cases exist where personnel have advanced two years in seniority. He stated that these instances are anomalies widely known throughout the Defence Forces. The applicant maintains high-ranking individuals such as the Officer in Charge of COMO can easily recount these instances from the last decade without consulting records. The applicant said that the comprehensive records of COMO, searchable by Army Numbers and Cadet Class designation, can readily corroborate this assertion.

In response to a further query by this Office about the information contained in a CV AF108 form, the Defence Forces explained that the AF108 contains the service particulars and personal data of an individual officer, including date of entry, history of ranks and appointments held. The Defence Forces said that its database does not contain information that would help to answer the applicant's request nor does it contain data filtration capabilities applicable to the applicant's request.

In relation to the applicant's comments on promotions based on seniority, the Defence Forces stated that certain "Special Services Officers"� may be promoted on what is known as a "fix term basis"� up to and including the rank of Commandant, having completed an agreed period of service at the ranks of Lieutenant and Captain. It said that these processes may be considered to promote officers on the basis of seniority within their respective Corps or Service. The Defence Forces said that above this rank, promotion takes place by open competition in accordance with agreed mechanisms. It said that these competitions, which include those referenced by the applicant in his request, are entirely merit based.

In response to a query by this Office about records relating to seniority, the Defence Forces said that a "�seniority list' may be generated via the DF's strategic database as required from time to time, but COMO does not actively maintain this record. It said, when such a list is generated, it relates to a particular rank or Service Corps and is accurate at the moment of generation only. The Defence Forces said the production of historical seniority lists is not possible.  The Defence Forces said that the lists are a "snapshot of a point in time which continuously change as its Personnel Management Section (PMS) is updated."�

In summary, it is the Defence Forces position that it does not have a record of the information sought, that it cannot extract the relevant information electronically, and that it would have to manually extract the information from each individual candidate's personnel record. The applicant has not argued that precise records containing the information he is seeking exist. Rather, it seems his primary argument is that the Defence Forces can indeed compile the information he is seeking from the records it holds. The question I must consider is whether it must do so pursuant to section 17(4).

The essential purpose of section 17(4) is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on an argument that the extracted output would comprise a new record and that the Act does not require the creation of a new record. However, it seems to me that for the section to apply, the requisite information sought must be contained within the relevant records such that it can be searched for and extracted by using a pre-existing electronic search and extraction facility. There is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act.

While I appreciate that the applicant will be disappointed by my decision, I have no reason to doubt the submissions of the Defence Forces that the records sought do not exist and that section 17(4) of the Act does not apply in this case. In the circumstances, I find that the Defence Forces was justified in refusing the applicant's request under section 15(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 to refuse access to the records sought on the ground that section 15(1)(a) of the Act applies.

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.

Richard Crowley
Investigator