Case number: 190003

Whether the Defence Forces was justified in its decision to refuse access to records related to chemical consumables issued to the Air Corps Spray Paint Shop during the period January 1990 to February 1998, on the ground that relevant records were created before the effective date of the FOI Act

17 May 2019

Background

By letter dated 19 December 2017 the applicant submitted a request to the Defence Forces for a computer listing from the Irish Air Corps AMMS system showing all chemical consumables issued to the Air Corps Spray Paint Shop from January 1990 until February 1998. Following correspondence between the parties, the applicant suggested certain queries and searches that could be run on the Air Corps systems to identify the information sought.

It appears that the Defence Forces did not issue a decision on the request and on 27 June 2018, the applicant sought an internal review of the refusal of his request. On 24 July 2018 the Defence Forces refused the request essentially on the ground that the existing interrogation systems did not have the capabilities to conduct the queries and searches suggested. On 2 January 2019 the applicant sought a review by this Office of that decision.

During the course of the review, Ms McCrory of this Office informed both the applicant and the Defence Forces of her view that no right of access exists to the records sought as they would have been created before the effective date of the Act, which is 21 April 1998 in the case of the Defence Forces. While she invited both parties to make a submission on the matter, no such submissions have been received to date from either party.

I have decided, therefore, to conclude this review by issuing a binding decision on the matter. In conducting my review, I have had regard to the correspondence between the Defence Forces and the applicant outlined above and to correspondence between this Office and both the Defence Forces and the applicant on the matter.


Scope of Review

This review is concerned with whether the Defence Forces was justified in refusing the applicant’s request for access to records related to chemical consumables issued to the Air Corps Spray Paint Shop during the period January 1990 to February 1998 on the ground that no right of access exists to any such records as they would have been created before the effective date of the Act, i.e. before 21 April 1998.


Preliminary Matter

Section 13(4) of the Act provides that any reasons a requester gives for making a request must be disregarded. This means that I cannot take account of the reasons why the applicant is seeking access to the information at issue. Furthermore, this Office has no role in examining the administrative actions of the Defence Forces. My role is limited to determining whether its decision to refuse access to the records sought was in accordance with the provisions of the Act.

Analysis and Findings

I would first note that the FOI Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter. In this instance, even if the Defence Forces is in a position to extract the information sought from its electronic systems, I am satisfied that in so far as the information was entered on those systems before 21 April 1998, those records should properly be considered as having been created at the date of entry and therefore before 21 April 1998.

The FOI Act provides for a right of access to records held by the Defence Forces that were created on or after 21 April 1998. Furthermore, section 11(5) confers a right of access to records created before 21 April 1998 where such access is necessary or expedient to understand records created after that date, or where the records relate to personal information about the requester.

Section 11(5) provides that access to records created before the effective date may be granted (a) where access is necessary or expedient to understand records created after the effective date or (b) where the records relate to personal information about the requester. I am satisfied that a computer listing showing chemical consumables would not contain personal information of the applicant, and therefore I find that section 11(5)(b) does not apply to the information sought.

The applicant provided no submission to this Office and he has not identified any record created after 21 April 1998 that cannot be understood without access to records created before this date. Without an identified record that was created after 21 April 1998, I cannot find that section 11(5)(a) applies. I therefore find that section 11(5) in its entirety does not apply.

In conclusion, therefore, I find that the Defence Forces was justified in refusing the applicant's request on the ground that any records containing the information sought were created before the effective date of the FOI Act and that the FOI Act does not for provide a right of access to such records.


Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse the applicant’s request on the ground that any records containing the information sought was created before the effective date of the FOI Act and that the Act does not provide for a right of access to such records.

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