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Case Number: 160314

Whether the Defence Forces was justified in refusing the applicant's request for access to certain risk assessments on the ground that the records have already been released to the applicant, and refusing a request for access to chemical exposure assessments on the ground that no relevant records exist

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 31 January 2016, the applicant made a request to the Defence Forces for a copy of all risk assessments carried out in the Air Corps pertaining to the use of six specified chemical products. He also sought reasons for the decision of the Formation Health and Safety Officer not to recommend the provision of occupational health surveillance to be made available to him. In its decision of 11 March 2016, the Defence Forces released six "Risk Control Data Sheets" which referred to chemicals generally and to activities involving the use of non-specified chemicals in the Air Corps, and one undated and unsigned risk assessment form entitled "DF-RA-04 Chemicals/Hazardous Substances". In response to the request for a statement of reasons, it stated that the formation safety Officer determined that the applicant's likely risk of ill-health due to occupational exposure to the chemicals is considered low, and that this is in accordance with the risk assessments carried out.

Arising from that request, which was ultimately the subject of a review and decision by this Office in Case 160159, the applicant submitted a further request to the Defence Forces on 23 March 2016 for the following:

- A copy of the risk assessments used by the Formation Safety Officer in making the determination that the applicant's risk of ill health due to chemical exposure was considered to be low,
- Assessments of chemical exposure level/limits conducted on the chemicals used by the applicant in conducting Aircraft sheet metal repairs,
- All training records pertaining to the applicant and chemical safety,
- Records relating to the issuing of personal protective equipment (PPE) to the applicant.
- The reasons for the decision of the Safety Officer not to differentiate between carcinogens and other less dangerous chemicals in conducting assessments.

On 30 May 2016, the Defence Forces issued a decision part granting the applicant's request. In response to the applicant's request for training records and records relating to the provision of PPE, the Defence Forces released nine records subject to the redaction of third party information. It also provided reasons for the decision of the Safety Officer not to differentiate between carcinogens and non-carcinogens in conducting assessments.

The Defence Forces refused the request for copies of the risk assessments relied upon by the Safety Officer, on the ground that the relevant risk assessments had already been released to the applicant following a previous request for records. The Defence Forces also refused access to the assessments of chemical exposure levels on the ground that no records exist. On 7 June 2016, the applicant sought an internal review of the Defence Forces' decision, and on 21 June 2016, the Defence Forces affirmed its decision.

On 28 July 2016, the applicant sought a review by this Office of the Defence Forces' decision. During the course of the review, the Defence Forces provided this Office with details of the applicant's previous request. The Defence Forces also provided information regarding its record management practices and details of the searches conducted to locate the assessments of chemical exposure levels sought by the applicant.

On 29 September 2016, Ms Lydia Buckley of this Office contacted the applicant and informed him of her view that the Defence Forces was justified in refusing his request for access to risk assessment records on the ground that it related to records already released. Ms Buckley also provided the applicant with details of the searches undertaken to locate the assessments of chemical exposure levels and informed the applicant that, in her view, the Defence Forces was justified in deciding that no records exist or can be found. The applicant was also invited to make a submission in support of his application, which he did. As the applicant has indicated that he requires a formal decision on the matter, I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Defence Forces and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the Defence Forces.

Scope of Review

This review is concerned solely concerned with whether the Defence Forces was justified in its decision to refuse the applicant's request for the risk assessment records used by the Safety Officer in making a specific determination in respect of him, on the ground that it related to records already released, and whether the Defence Forces was justified in refusing access to assessments of chemical exposure levels, on the ground that no records exist or can be found.

Analysis and Findings

Risk Assessments

Section 15(1)(i)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester, and the records are available to the requester concerned.

The Defence Forces refused the applicant's request for the risk assessments relied upon by the Safety Officer in determining that the applicant was at low risk of ill health due to chemical exposure, on the ground that it had previously released these records to the applicant. As I have outlined above, the Defence Forces previously released a number of Risk Control Data Sheets on foot of the earlier request. In Case 160159, it explained that a Risk Control Data Sheet is equivalent to a risk assessment, in that it identifies a hazard, outlines the risk factors involved, and specifies the protective or preventative measures to be taken.

In its submission to this Office during this review, the Defence Forces stated that the Risk Control Data Sheets previously released were the only risk assessments used by the Safety Officer in making his determination and that no other risk assessments, apart from the Risk Control Data Sheets previously released, were relied upon by the Safety Officer. While the applicant does not accept this, and argues that he was not provided with the risk assessments used but rather given blank risk assessments, I have no reason to doubt the statement of the Defence Forces that no other risk assessments were relied upon.

On the basis of the information provided to this Office by the Defence Forces, I satisfied that the risk assessments relied upon by the Safety Officer in making his determination have been released and are available to the applicant. I find, therefore, that the decision of the Council to refuse the applicant's request under section 15(1)(i)(i) of the FOI Act was justified.

Assessments of Chemical Exposure Levels

Section 15(1)(a) provides that a request for access to records may be refused if the record concerned does not exist or cannot be found, after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the records were reasonable.

In its submission to this Office, the Defence Forces provided details of the applicable record management policy and details of the searches conducted to locate the assessments of chemical exposure levels sought by the applicant. As outlined above, Ms Buckley of this Office has already provided the applicant with these details. While I do not propose to repeat those details in full, I can confirm that I have had regard to them for the purpose of this review.

In summary, the Defence Forces stated that it conducted searches of the Formation Safety Office, including a manual search of office files and an electronic search of the office's computer storage drive: "Health and Safety J Drive". The electronic search was conducted using keywords. The Defence Forces stated that Comdt. Colin Roche was consulted during these searches and he reported that no records were misfiled or misplaced. It is the opinion of the Defence Forces that the records sought by the applicant do not exist.

In his submission to this Office, the applicant made it clear that he does not accept the basis of the Defence Forces' position in relation to its determination that he was at low risk of ill health due to chemical exposure. He commented that he would have expected the Safety Officer to have relied on completed risk assessments, rather than blank templates, and assessments of chemical exposure levels to have been conducted. However, while the applicant may consider that further records ought to exist, the FOI Act does not provide a right of access to records which ought to exist or oblige an FOI body to create records where none exist.

The question I must consider in conducting this review is whether the Defence Forces has taken all reasonable steps to locate the records sought by the applicant in his request. Having regard to the details of the searches conducted by the Defence Forces to locate assessments of chemical exposure levels, and of its record management practices in relation to such records, I am satisfied that all reasonable steps have been taken to locate the records sought by the applicant. I find, therefore, that the Defence Forces was justified in its decision to refuse the applicant's request for access to records on the ground that no records exist or can be found, after all reasonable steps have been taken to ascertain their whereabouts.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, 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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator