Case number: 99025
Case 99025. Request for records relating to the requester's interview in a Battalion in the FCA for a place on a Potential Officers Course - whether further records exist -section 10(1)(a)
The requester sought access to records concerning his interview in a Battalion in the FCA for a place on a particular course. The Department gave the requester access to certain records and information. It told him that the interview board had made no recording, or noted any findings, in respect of him or any other candidate who was not nominated to go forward to further interviews.
The Defence Forces claimed that the interview board in question had not kept any notes of the interview of the applicant, or of the interviews of the other candidates, other than to record the names of the successful interviewees. It also claimed that no records were kept of the selection criteria used (apart from a number of general directions, to which the requester was given access). The Commissioner noted that, while enquiries and searches were made in relation to the possible existence or otherwise of these records, no records were found. While the failure of the Defence Forces was an indication of the poor quality of its record keeping practices, he was satisfied that an adequate search had been carried out for the records in question. He found that section 10(1)(a) applied to the records, in that they did not exist or could not be found after all reasonable steps had been taken to look for them.
Our Reference: 99025
Dear Mr. X
I refer to your application under the Freedom of Information (FOI) Act for a review of the decision of the Defence Forces concerning your request for documentation relating to your interview in [name of battalion], FCA for a place on [name of particular course]. Please accept my apologies for the delay in dealing with your application.
I have now completed my review of the Defence Forces' decision. In carrying out that review, I have had regard both to your submissions and to the submissions of the Defence Forces. I have also taken into account the Defence Forces' records in relation to applications for the course which were provided to my Office for inspection.
As you know, the Defence Forces responded to your request by saying that it was decided to grant you access to available information. You were advised that you were one of nine applicants interviewed by a local Board set up by [name of battalion], during the week commencing [date]. This interview board recommended five candidates who were nominated to go forward to the interviews at HQ EC FCA for the course. The Defence Forces advised you that the interview board which interviewed you "made no recording or noted any findings in respect of you or any other non-nominated candidate". You were also told that following the unit nominations, the General Officer Commanding the Command convenes the definitive Command interview " as per DFR R 5" and you were sent a copy of the terms of reference used which are contained in DFR R 5.
My review is concerned solely with the question of whether the Defence Forces' decision that there are no further records relating to your request is in accordance with the provisions of the FOI Act.
I have concerned myself, in particular, with the possibility that records of the kind outlined in your letter to me of 1st February, 1999 may exist, that is, records relating to the decision making criteria used by the unit interview board and records relating to the conduct of the interview board and its findings in relation to individual candidates.
The Defence Forces has refused access to any further records on the basis that no further records exist. While no section of the FOI Act has been cited, the Defence Forces appear to be relying on section 10(1)(a) of the Freedom of Information Act, which provides as follows:"10.(1) A head to whom a request under section 7 is made may refuse to grant the request if (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, ...."
The matter which I must address in this review is whether the decision to refuse access to further records pursuant to section 10(1)(a) is justified. It is not the role of my Office to carry out a search for the records in question. I raised a number of questions with the Defence Forces in relation to the records relating to the nominations for the [name of particular course], which had been made available to me for inspection. My enquiries were concerned with the manner in which the interview board was conducted and the selection process used. I also requested that searches be conducted for any further relevant documentation which had not been released to you.
The Defence Forces confirmed that the local interview board, which you attended, kept no notes at all of the candidates interviewed. No records were kept of the selection criteria used (apart from the general directions given in DFR R 5 with which you were supplied). It appears that the interviews resulted in the selection of five candidates who were then nominated by the Officer Commanding the [name of battalion] (Commandant Y) to attend for the HQ interviews in relation to the course in question. In other words the interview board, which you and eight other candidates attended, resulted in no notes being taken other than the names of five interviewees being presented to Commandant Y. Commandant Y then proceeded to complete the required reports for these applicants recommending them for the HQ interviews. While the failure to make and retain notes of the local interviews (the [name of battalion] interviews) for either the successful or unsuccessful candidates may indicate poor record-keeping practice, I am satisfied that enquiries and searches were made in relation to the possible existence of such records and that no such records were found.
Whereas this forms no part of my binding decision in relation to your application, I note that the failure to record the guidelines used by the local interview board in selecting candidates cannot be considered good administrative practice.
I am satisfied, on the basis of the enquiries made by my Office and on the basis of the information supplied by the Defence Forces, that the Defence Forces has taken all reasonable steps to ascertain the whereabouts of the records sought. I accept that the Defence Forces' decision on your request was, therefore, in accordance with the provisions of the FOI Act. I am of the opinion that this is a case in which section 10 (1)(a) of the Act applies, that is, where "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the Defence Forces in relation to your request of 4 June 1998.
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 of this letter.