BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Whether the Defence Forces was justified in its decision that certain records relating to the circulation of a Military Police Report do not exist

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the Defence Forces on 23 September 2014 seeking a statement of reasons for the decision of an Assistant Provost Marshall to circulate a Military Police Report to four named senior Officers. He also sought a copy of the relevant abstract of Defence Forces Regulations that supported the decision to circulate the Report to the Officers concerned.

On 4 November 2014, the Defence Forces issued a decision explaining why each of the four Officers concerned received copies of the Report. The decision maker also explained that Provost Marshall Directions are not issued pursuant to a Defence Forces Regulation and that the record sought did not, therefore, exist. He referred, instead, to a relevant extract from the Provost Marshall Directives that had been released on foot of an earlier FOI request.

The applicant applied for an internal review of the decision in relation to his request for the relevant regulation as did not consider that the Directives extract satisfied his request. The Defence Forces issued its internal review decision on 8 December 2014, upholding the original decision. The applicant submitted an appeal to this office on 11 December 2014

During the course of this review Mr. Christopher Campbell of this Office contacted the applicant on 20 February 2015 and informed him of the Defence Forces' position in relation to the record sought. The applicant indicated that while he was of the opinion that such a record should exist, he required a formal decision on the matter. In conducting this review I have had regard to correspondence between this Office and the Defence Forces, to correspondence between the applicant and the Defence Forces, and to correspondence between the applicant and this Office.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The position of the Defence Forces is that the record sought the applicant does not exist. Accordingly, this review is solely concerned with the question of whether the Defence Forces was justified in its decision to refuse access to a copy of the relevant abstract of Defence Forces Regulations that supported the decision to circulate the Report to the Officers concerned under section 10(1)(a) of the FOI Act on the basis that the requested record does not exist.

Analysis and Findings

Section 10(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. The Commissioner's role in cases such as this is to review the decision of the public 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 public body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).

The Defence Forces has outlined its position that Provost Marshall Directions are not issued pursuant to a Defence Forces Regulation and that the record sought did not, therefore, exist. The applicant appears to accept that the record does not exist. Instead his argument appears to be that it should exist and that the absence of such a record constitutes maladministration on the part of the Defence Forces. This Office has no role to play in examining the administrative actions of the Defence Forces. As outlined above, our role is confined to determining whether the Defence Forces was justified in deciding that the record sought does not exist. No evidence has been presented to this Office to suggest that the explanation provided by the Defence Forces should not be accepted. Accordingly, I find that the Defence Forces was justified in refusing the request on the ground that the record sought by the applicant does not exist.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Defence Forces.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator