Whether the Defence Forces has complied with the requirements of section 10 in respect of the application for a statement of reasons as to why the applicant was not recommended for a named course and whether it was justified in refusing under section 15(1)(a) of the Act, his request for a copy of a submission file regarding that course application

4 April 2022

Background

On 23 December 2021, the applicant submitted a request to the Defence Forces for the reasons and decisions why he was not recommended for a named course, and for -�A copy of [his] sub file put together for the course-�. On 13 January 2022, the Defence Forces issued a decision wherein it part granted the request. It provided the applicant with a statement relating to its engagements with the applicant concerning an application for the course. Among other things, it said that by the time the applicant asked if he could apply for the course over the phone, it was past the point where the required processing steps could be completed within the relevant deadline. It refused the second part of the request under section 15(1)(a) of the Act on the ground that no such records exist.

On 18 January 2022 the applicant sought an internal review of the Defence Forces' decision. He said that a Redress of Wrongs investigation in 2014 concluded that he be recommended for all Standards Courses and that this be placed on his file. He said he was previously able to make the application for such courses via phone and was subsequently recommended for those courses. On 4 February 2022, the Defence Forces affirmed its decision on the request. On 14 February 2022 the applicant applied to this Office for a review of the Defence Force's decision.

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 parties as outlined above and to the correspondence between this Office and both parties on the matter. 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 has complied with the requirements of section 10 in respect of the application for a statement of reasons as to why the applicant was not recommended for a named course and whether it was justified in refusing, under section 15(1)(a) of the Act, the applicant's request for a copy of a submission file regarding that course application.

Preliminary Matter                                                                 

As previously explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Neither does our remit extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought. Accordingly, the appropriateness, or otherwise, of the actions of the Defence Forces in respect of the applicant's wish to attend the course in question is not a matter for consideration by this Office

Analysis and Findings

Section 10

Section 10 of the FOI Act 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. This Office considers that a statement should be intelligible and adequate having regard to the particular circumstances of the case. It should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However, a statement should not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision.

It seems to me that the key issue in this case is whether the Defence Forces has adequately explained why the applicant was not recommended for the named career course. In its original decision of 13 January 2022, the Defence Forces explained that for an application to be -�not recommended-�, an application must be made. It said that the deadline for applying for the course was 12pm on 10 December 2021. It said the applicant called 16 minutes before the deadline inquiring if he could apply for the course over the phone. It noted that he also called earlier in the day when he had been informed no application had been received from him.

The Defence Forces said it informed the applicant that 16 minutes before the deadline was past the point at which staff were reasonably capable of processing all the necessary information and raising a sub-file for consideration for recommendation/non-recommendation in time to be submitted. It was explained to the applicant that it could not accede to a late application. It explained that for these reasons he was not awarded a place on the course and no sub-file was created.

In communications with this Office, the applicant referred this Office to his comments made in his internal review request dated 18 January 2022. As outlined above, the applicant said that he was able to made applications for other courses via the phone and said the course had not yet begun. He said the unit was aware he wished to apply at an early stage. It seems to me that the applicant is not arguing that he has not been informed why the Defence Forces acted as it did. Rather he appears to be challenging the appropriateness of not having been awarded a place on the course. He is essentially arguing that the Defence Forces was wrong not to process his application and considering the earlier Redress of Wrongs ruling, he should have been recommended to attend the course.

As I have outlined above, the applicant has previously been made aware of the fact that our remit does not extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought. Section 10 is concerned with the provision of reasons for the act or decision and any findings on any material issues of fact made for the purposes of the act or decision concerned. If the body explains why it acted as it did, this Office has no further role in the matter. In this case, I am satisfied that the Defence Forces has adequately explained why the applicant was not recommended for the course. Whether that decision was appropriate or not is not a matter for this Office to determine. In conclusion, therefore, I find that the Defence Forces has compiled with the requirements of section 10 in relation to the application for the statement of reasons sought.

Section 15(1)(a)

Section 15(1)(a) of the 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 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 consists 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 FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

As outlined above, the Defence Forces explained that a sub file for each applicant to a course is created only when someone applies for a course. It said that no sub file exists was because no application form was submitted. The -�over the phone' request was not acceded to, and thus no sub file was created. I accept the submissions of the Defence Forces on this point. Accordingly, I find that the Defence Forces was justified in refusing, under section 15(1)(a) of the Act, access to the submission file on the ground that no such record exists.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces.

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