Whether the Defence was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for records relating to two professional courses he applied to attend

7 December 2020

Background

The applicant is a member of the Defence Forces. In a request dated 7 July 2020, he sought

i. “… the reasons and decisions why I was recommended for the Sheet Metal Structural Repair Course but not the AW139 Maintenance Course (AW139) …” and
ii. “… any information/emails or handwritten notes relating to me on this”.

On 27 July 2020, the Defence Forces issued a decision in which it refused access to any relevant records under section 15(1)(a) of the Act. On 12 September 2020, the applicant sought an internal review of that decision, he argued that certain records should be held on his personnel file. On 6 October 2020, the Defence Forces affirmed its original decision. On 14 October 2020, the applicant sought a review by this Office of that decision. Upon receipt of the application, this Office treated the application for a statement of reasons and the request for access to certain records as two separate reviews. However, having regard to their overlapping nature, I have decided to issue a single composite decision in respect of both reviews.

During the course of the review, the Investigating Officer informed the Defence Forces of her view that part (i) of the request comprised an application for a statement of reasons, pursuant to section 10 of the act. In response, the Defence Forces said it did not consider that the applicant made such an application.

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, and to the communications between this Office and both the applicant and the Defence Forces on the matter.

Scope of Review

This review is concerned with (a) whether the Defence Forces was justified in finding that the applicant had not made a valid application for a statement of reasons under section 10 of the Act at part (i) of his request and (b) whether it was justified in refusing part (ii) of the request under section 15(1)(a) of the Act on the ground that no relevant records exist or can be found.

Analysis and Findings

Statement of Reasons - Section 10

Section 10 provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Under subsection 10, an application under this section must be expressed to be such an application However subsection (11) provides as follows:

“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 information access to which can be obtained 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 essence, an FOI body cannot treat an application for a statement of reasons as invalid based solely on the fact that the application was not expressed as such an application unless it has first assisted, or offered to assist the individual in the preparation of a proper application.

Having regard to the precise wording of the applicant’s request, it is clear to me that he was, indeed, seeking a statement of reasons at part (i) of his request, namely a statement of reasons as to why he was recommended for a particular course but not another.

As the Defence Forces has not indicated that it assisted the applicant or that it offered assistance in the preparation of a valid application for a statement of reasons, I find that it was not justified in refusing to consider the application for the statement of reasons sought.

In the circumstances, I consider that the most appropriate course of action to take is to annul the decision of the Defence Forces in respect of part (i) of the request and to direct it to consider afresh the application for the statement of reasons sought.

Access to Records - Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if 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 such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

During the course of the review, the applicant confirmed that he was seeking records in relation to both the Sheet Metal Structural Repair Course and the AW139 Maintenance Course. In submissions to this Office, the Defence Forces said that searches were carried out for information/ emails or handwritten notes relating to the applicant on the subject of non-recommendation for AW139. It said that all applications for courses are made using the ‘Air Corps Standard Applicant Proforma- Course” document. This document is normally handwritten and is signed and marked when recommended and not recommended. It said when a course application is not recommend the applicant is informed. The Defence Forces submitted that physical searches for the handwritten application to AW139 were conducted in a named Comdt.’s work email account for “content relating to the applicant and course non-recommendation for” for Course AW139.

It said that an application for a course is submitted through the unit orderly room where it is stored in the applicant’s unit file. The Defence Forces explained that normally the application to recommend or not recommend is made by the Squadron Commander. The Unit Commander also reviews and signs the application with a recommendation or non-recommendation. A recommended application would be sent out of the unit to AC HQ and a copy stored in the applicant’s unit file, whereas non-recommended applications are not forwarded and stored in the applicant unit file. All course application records, whether recommended or not, are stored there. The Defence Forces said the locations searched included the applicant’s unit file, the desks, filing cabinets and folders within the Office, a named Comdt.’s office, the unit Officer Commanding’s office and the adjutant’s office were also searched.

During electronic searches carried out on a named Comdt.’s Defence Force email account the key words used were the applicant’s surname, “AW139” and “course”. The Comdt. searched his H Drive using the same keywords.

The Defence Forces submitted that the named Comdt. concluded that records relating to a non-recommendation to the applicant’s AW139 application do not exist. The named Comdt. said that he has no recollection of receiving an application and noted no record was uncovered during the searches.  At internal review stage the applicant noted that searches were carried out in an operations areas separate to the one where he was working when he made the two applications. The Defence Forces explained that records were forwarded to the other squadron orderly room for filing and was therefore the appropriate location to conduct searches.

While it does appear that the Defence Forces sought to carry out searches of all locations where it might expect to find relevant records relating to course AW139, it has failed to conduct searches relating to the Sheet Metal Structural Repair Course which is clearly an important omission. While the wording of the applicant’s request is somewhat vague, it should have been clear to the Defence Forces, upon receipt of the application for internal review, that the applicant was seeking records relating to both courses. I note, for example, that he specifically stated in his application for internal review that he filled in two separate applications and that both should be on his personnel file. Furthermore, there is a general obligation on FOI bodies, under section 11(6) of the Act, to assist requesters in the making of requests. It was open to the Defence Forces to clarify the precise records sought if it was in any doubt about the scope of the request but it did not do so.

In the circumstances, I must find that the Defence Forces did not carry out all reasonable searches for relevant records in this case. I consider that the appropriate course of action to take is to annul the Defence Force’s decision, the effect of which is that the Defence Forces must consider the applicant’s request a fresh 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 he is not satisfied with the Defence Force’s fresh decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Defence Forces as specified above, and direct it to process part (i) of the request as an application under section 10 for a statement of reasons and to conduct a fresh decision-making process in respect of part (ii) 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.

 

Stephen Rafferty

Senior Investigator