Case number: OIC-103669-Y0D4Y1

Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to an accident report form submitted by the applicant to the Defence Forces Training Centre (DFTC) and any other records relating to him on to this matter, on the ground that no relevant records exist or could be found

12 May 2021

Background

The applicant is a member of the Defence Forces. He attended an All Arms Standard NCO Course at the Non Commissioned Officers Training Wing (NCO TW) in May 2019. The NCO TW is part of the Infantry School at the Defence Forces Training Centre (DFTC) at the Curragh Camp. 

While attending the course, the applicant fell and was injured in an accommodation block. According to the applicant, he was attended to by a fellow student before continuing to his lectures. He said he was later advised by a named Sergeant to submit an accident report form to the DFTC and this was witnessed by a named Captain. Sometime following the accident, the applicant received medical attention from the Curragh Hospital (a medical unit at the Curragh Camp), Naas General Hospital, his local GP and a Defence Forces physiotherapist.

In a request dated 25 July 2020, the applicant sought access to;

“A copy of the accident report I submitted to NCO Training Wing in relation to an accident that happened” and “Any information/emails or handwritten notes relating to me on this.”

On 3 December 2020, the Defence Forces refused the request for a copy of the accident report under section 15(1)(a) of the FOI Act on the ground that no such report could be found. It said extensive searches were carried out by the NCO TW, the Infantry School Headquarters, the Military College Headquarters Orderly Room and DFTC Health and Safety section.

On 8 December 2020, the applicant sought an internal review of that decision, wherein he said the report was important and that we wanted a copy of same, following which the Defence Forces affirmed its original decision. On 11 February 2021, the applicant sought a review by this Office of the Defence Force’s decision. Among other things, he said the report in question should have been filed and that the incident should have been recorded on the Personnel Management System (PMS). He also said the accident is recorded on medical notes by the Defence Forces and that the army physio has a copy of the accident information.

During the course of the review, the Investigating Officer provided the applicant with details of the Defence Forces submissions concerning the searches undertaken to locate relevant records and of its explanation as to why no relevant records could be found or exist. She informed the applicant of her view that the Defence Forces was justified in refusing to grant the request under section 15(1)(a) of the FOI Act and invited him to make a submission on the matter. In his response of 4 May 2021, the applicant said he believed that the accident report form exists and that Defence Forces staff members hold notes relating to the fall. He said it was unacceptable that such information has not been released. He detailed the medical attention he received as a result of the fall. He explained that he has a copy of medical notes related to the fall.

In the circumstances, I consider it appropriate to conclude this review by way 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 outlined above and to correspondence between this Office, and both the Defence Forces and the applicant on the matter.

Scope of Review

I note that the outset that the applicant has received his medical notes relating to his accident. In his request, detailed above, he sought access to a copy of an accident report he says he submitted to NCO Training Wing and “any information/emails or handwritten notes relating to me on this”. Having regard to his subsequent correspondence with the Defence Forces and with this Office, I take the reference to “this” to mean the report he says he submitted. Accordingly, this review is concerned solely with whether the Defence Forces was justified, under section 15(1)(a) of the Act, in refusing the applicant’s request for access to an accident report form held by the DFTC and any other records relating to that report on the ground that no such records exist or can be found.

Preliminary Matters

Firstly, as has previously been explained to the applicant, this Office has no remit to investigate complains, 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.

Secondly, in his submissions to this Office, the applicant complained about delays by the Defence Forces in responding to his FOI request. The Act provides that FOI bodies shall decide upon an FOI request as soon as soon as may be, but no later than 4 weeks, after the receipt of an FOI request. In 2020, the Commissioner published his investigation report into compliance by FOI bodies with the statutory timeframes for processing requests. The report is available on www.oic.ie. The Defence Forces was one of five bodies examined as part of this investigation. The Commissioner made a number of recommendations in his report aimed at enhancing compliance with the FOI Act.

While this review, carried out under section 22(2) of the Act, is confined to the decision of the Defence Forces in regard to the records sought by the applicant, I would remind the Defence Forces of its obligations concerning the statutory timeframes provided in the Act.

Analysis and Findings

Section 15(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. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether the 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the course of the review, the Defence Forces provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Defence Forces said that the Personnel Management System (PMS) is a computer application that records the history of personnel on their induction to the Defence Forces. It is the main human resources tool for employees and their development through their military career. Examples of PMS records are time and attendance, conduct, ability, promotions, courses completed, overseas postings, discharges, medical grading etc. The Defence Forces explained that when an individual is injured at work that the first instance is to receive medical attention. It is the individual’s responsibility to report their accident to the headquarters and initiate an AF.482 (Accident and Injury Form) along with witness reports.

Upon receipt of this FOI request, the DFTC said it carried out a search of the PMS using the applicant’s unique personal army number and no records were located. The DFTC noted the applicant is a member of the Air Corp and his personnel file is located there. The records management unit searched its filing cabinets to ensure the physical file was not retained. The DFTC Health and Safety Office conducted searches and no record of the accident was found.

Course files are stored both online on the NCO TW drive and physically in the Archive room up to a period of seven years following course conclusion. The Defence Forces said a thorough search was carried out in both locations but no records were located. Furthermore, it said that the training diary entry for the applicant on 3 May 2019 did not mention an accident or injury occurring. The Defence Forces outlined that where a staff member does not complete or leaves a course to receive medical attention she/he must note this on the LA30 ‘Sign-out’ Register. It said that the course commenced on 29 April 2019 and the first date a student drew their LA30 was 10 May 2019.

The Defence Forces outlined that the Sergeant who the applicant said advised him to submit an AF.482 was paraded and questioned in relation to this matter. The Sergeant said he has no recollection of the accident taking place. The Captain who allegedly witnessed this conversation also does not recall any incident being brought to his attention.

In an email to this Office dated 4 May 2021, the applicant alleged that Defence Force members gave false information during this review. He did not identify the specific staff members he was referring to. He said that he was detailed by the named Sergeant to hand up a written accident report which the applicant is adamant he did. He reiterated his belief that false information had been provided to this Office. He reminded this Office that he has a copy of medical notes of the fall which were created by Defence Forces staff members.

In cases such as this, where conflicting information has been presented in relation to the recollection of past events, this Office is simply not in a position to accept one version of events over another in the absence of supporting evidence to support that version. Rather, as outlined above, our role is to decide whether the Defence Forces has satisfactorily shown that it has taken all reasonable steps to ascertain the whereabouts of the records sought.

It is, in essence, the Defence Force’s position that no relevant records exist or can be found after all reasonable searches have been carried out. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist. 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.

It is important to note that there are limits to the measures public bodies must take to locate records sought by applicants under the FOI Act. There is no requirement on bodies to search for records indefinitely. Where this Office considers that a body has conducted all reasonable searches, it will generally affirm the decision on that basis, even where records that are known to have existed at some point have not been located.

Having considered the details of the searches undertaken and its explanation as to why no records exist or can be found, I am satisfied that the Defence Forces has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. I find, therefore, that the Defence Forces was justified in refusing access to further records apart from those already released on the grounds that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of the Defence Forces to refuse access, under section 15(1)(a) of the FOI Act, to an accident report form submitted to the DFTC by the applicant and any further records relating to him on this matter.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator