Whether the Defence Forces was justified in its decision to refuse the applicant’s application for amendment of personal information relating to his father on the ground that the application did not comply with the requirements of section 9(10) of the FOI Act

8 May 2020

Background

The applicant in this case has engaged with the Defence Forces on a number of occasions relating to his late father’s service record in connection with his belief that his father was recommended for a Distinguished Service Medal relating to his service at Jadotville but that the medal was never awarded.

On 18 July 2019, the applicant emailed the Defence Forces in which he referred to two telephone conversations he had with members of the Defence Forces that day concerning his father’s files. The email is quite confusing, particularly without specific knowledge of the details of those conversations. However, it appears to infer that the applicant understood it had been suggested to him in those conversations that he should request a report as to why the Defence Forces found that there was no reason to change an earlier report of 19 January 2018 in which it was stated that his father was never recommended for a medal by his Company Commander. He provided documentation in support of his contention that his father has been recommended for a medal.

It appears that the Defence Forces treated that email as an application made by the applicant under section 9 of the FOI Act for the amendment of his father’s records to reflect his recommendation for an award of the Distinguished Service Medal. In a decision dated 6 August 2019, it refused the application, citing section 9(10) of the Act. That section provides that an application for the amendment of records must be expressed to be such an application and must contain sufficient particulars in relation to the personal information concerned to enable the record to be identified by the taking of reasonable steps. The decision letter also stated that the applicant’s father’s name was not on a list of 22 cases examined by the Medal Board for the award of a Gallantry Medal and that it was not on other lists comprising the names of 120 further personnel considered by the Board for the award of a Distinguished Conduct Medal at the same time.

On 19 August 2019, the applicant issued another somewhat confusing email to the Defence Forces wherein he stated he was requesting an internal review of his father’s records. He also said what he had actually requested was for the Defence Forces to confirm that his father was recommended by a named Company Commander. Furthermore, he said there were 196 names of the original lists of recommendations and not 142 as was indicted in the decision.

On 2 September 2019, the Defence Forces issued an internal review decision that was also quite confusing. It stated that it was upholding the original decision but also stated that section 32(1) applied to the records sought. That section provides for the refusal of a request for records for reasons related to law enforcement and/or public safety.

On 11 September 2019, the applicant sought a review by this Office of the decision of the Defence Forces. He stated that his father was recommended by his Company Commander and that the Defence Forces say his father was never recommended for a medal by his Company Commander. He said this is what he requested to be amended.

I have now concluded my review in this case. In conducting the review, I have had regard to the correspondence between the Defence Forces and the applicant as outlined above and to correspondence between this Office and both the Defence Forces and the applicant on the matter.

Scope of Review

As will be apparent from my description of the exchanges of correspondence between the parties described above, there is considerable confusion as to the precise nature of the original application made in this case and, indeed, the precise nature of the subsequent decisions made.

The decision taken by the Defence Forces was to refuse what it regarded as an application for the amendment of records under section 9 of the Act pursuant to section 9(10).

Accordingly, this review is necessarily confined to a consideration of whether the Defence Forces was justified in its decision to refuse the application on the ground that the application did not comply with the provisions of section 9(10).

Analysis and Findings

Section 9 of the FOI Act provides for a right of amendment of incomplete, incorrect, or misleading personal information in a record held by an FOI body. For the purposes of this review, the relevant subsections of section 9 are as follows:

Subsection (2) requires that an application for amendment “shall, in so far as practicable, (a) specify the record concerned and the amendment required, and (b) include appropriate information in support of the application”. 

Subsection (10) provides that an application under section 9 “shall be expressed to be such an application and shall contain sufficient particulars in relation to the personal information concerned to enable the record to be identified by the taking of reasonable steps.”

Subsection (11) provides that, notwithstanding subsection (10), where an FOI body receives either—

(a) an application which purports to be an application under this section but which is not in the proper form, or

(b) an application which does not purport to be an application under this section but which applies for the amendment of personal information to which amendment can be effected only by way of an application under this section,

the head shall assist, or offer to assist, the individual in the preparation of an application under this section.”

In its submissions to this Office, the Defence Forces said it had determined that the applicant in this case had not identified a specific record that he wished to be amended. It said it considered that the applicant is essentially seeking to have his father’s service record amended by having his name included on the list of those soldiers for the Distinguished Service Medal in respect of service with a named battalion. 

Having considered the engagements between the parties as described above, it seems to me that the applicant did not make a valid section 9 application, having regard to the provisions of subsections (2) and (10). The applicant’s email of 18 July 2019 that the Defence Forces treated as an application under section 9 did not specify the record concerned and the amendment required. Furthermore, it was not expressed to be an application under section 9, nor, in my view, did it contain sufficient particulars in relation to the personal information concerned to enable the record to be identified by the taking of reasonable steps.

In fact, on its face, the email could be regarded as a request for reasons why the Defence Forces had decided not to amend the applicant’s father’s files. Furthermore, in his email of 19 August 2019 wherein he sought an internal review of the Defence Forces’ decision, the applicant stated that he was asking the Defence Forces to confirm to him that his father had been recommended by his Company Commander for a medal. He made no mention of seeking the amendment of any specific records.

On the matter of the requirement in subsection (11) for the body to assist, or offer to assist, the individual in the preparation of an application under this section where an application which does not purport to be an application under this section but which applies for the amendment of personal information to which amendment can be effected only by way of an application under this section, the Defence Forces argued that it did, indeed, offer such assistance.

In support of that position, the Defence Forces referred to previous correspondence with the applicant, including a letter it had issued to him on 13 November 2018 on foot of a previous application that he had submitted on 22 October 2018 for the amendment of his father’s files. In that letter of 13 November 2018, the Defence Forces said the application of 22 October 2018 did not specify what specific record was incomplete, incorrect or misleading or what amendment was required, nor did it provide appropriate information in support of any such application.

The applicant replied by letter dated 19 November 2018 wherein he explained, among other things, that he was hoping to solve the issue of the medal recommended by his father’s Commanding Officer and that he wanted all of his father’s papers corrected. This Office sought details of what steps it took following receipt of that letter and sought copies of any further correspondence that followed. In response, the Defence Forces simply said it had corresponded with the applicant on numerous previous occasions both verbally and in writing. It referred to the original decision and internal review decision it had made on the request of 18 July 2019, the request at issue.

It appears to be the position of the Defence Forces that the email of 18 July 2019 that it treated as an application under section 9 was part of the continuum of correspondence stemming from the application of 22 October 2018.

It seems to me that much of the confusion that has arisen in this case is due to the applicant’s lack of understanding of the nature of section 9. I must say that this is not surprising as the amendment provision is quite a complex provision and it is understandable that public bodies are required to offer assistance in the formulation of applications for amendment.

While I believe that the Defence Forces could have done more to assist the applicant by explaining clearly the mechanics of section 9, I accept, on balance, that it offered assistance to the applicant based on the interactions between the parties on foot of the application for amendment dated 22 October 2018.

As such, I find that the applicant did not make an application for amendment that complied with the requirements of subsections (2) or (10) of section 9. I find, therefore, that the Defence Forces was justified in refusing the application on the ground that it did not comply with the requirements of subsection 9(10).

For the benefit of the applicant, I would like to make the following comments concerning the right of amendment provided for in section 9.

It is important to note at the outset that it is not the role of this Office to adjudicate upon how FOI bodies carry out their functions generally. We do not have the authority to investigate complaints against FOI bodies. The provision of the Act that provides for a right of amendment of records does not provide an alternative mechanism for resolving disputes regarding the administrative actions of FOI bodies or an alternative appeal mechanism against determinations by a properly appointed authority.

It is also worth stating that the right of amendment applies to personal information in a record. It is the information, rather than the record, that must be incomplete, incorrect or misleading before the right of amendment may be exercised. In this case, the applicant appears to be seeking the amendment of his father’s service record.

A service record is capable of amendment only in so far as the service details are captured in actual records as defined by the FOI Act. In other words, the applicant should be in a position to identify records actually held by the Defence Forces and to identify his father’s personal information contained in those records that he believes to be incorrect, incomplete, or misleading.

It appears to be the applicant’s position that his father was recommended for a Distinguished Service Medal by his Commanding Officer and that one or more records held by the Defence Forces indicate that this was not the case. I note that he previously received copies of records held by the Defence Forces relating to his father. As such, it is open to the applicant to submit a fresh application for amendment of those records. If he chooses to do so, I would recommend that he;

• makes the application in writing,
• states that the application is an application for amendment under section 9 of the FOI Act 2014,
• identifies the specific records held by the Defence Forces he wants amended,
• Identifies the specific personal information relating to his father within those records that he wants amended, and
• the specific amendments he wants made to the records.

He should also include with his application appropriate information / documentation in support of his application.

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 the applicant’s application for amendment of personal information relating to his father on the ground that the application did not comply with the requirements of section 9(10) of the FOI Act.

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