Case number: 180084
On 3 November 2017, the applicant submitted a request to the Defence Forces for access to certain records relating to the Non-Commissioned Officer Competition 2017 concerning him.
The Defence Forces issued its decision in two parts. It released a number of records with the redaction of certain third party information from one of the records.
On 5 February 2018, the applicant sought an internal review of that decision as he had not received copies of the scoring matrix used by the promotion board and the scores awarded by each individual board member for his file review as requested. On 14 February 2018, the Defence Forces issued its internal review decision. It informed the applicant that it had already released the scoring matrix in its earlier decision and stated that Boards are not required to keep a record of the score that each individual board member awards a file. On 6 March 2018, the applicant sought a review by this Office of that decision in respect of those records.
During the course of the review, and following correspondence with this Office, the Defence Forces provided the applicant with an extract of a guidance document for interview boards relating to the allocation of marks. Ms Swanwick of the Office informed the applicant of her view that the release of this record served to meet the applicant's request for the scoring matrix. The applicant did not take issue with that view.
Ms Swanwick also provided the applicant with details of the submission of the Defence Forces wherein it outlined the details of the searches undertaken in an effort to locate records and of its explanation for finding that no records containing scores awarded by each individual board member exist. She informed the applicant of her view that the Defence Forces was justified in deciding that no further relevant records exist or could be found. The applicant subsequently provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting 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. I have also had regard to the contents of the records released to the applicant.
The scope of this review is concerned solely with whether the Defence Forces was justified in refusing further records relating to the applicant's request for the scores awarded by each individual board member in relation to his file review.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous 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 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.
The Defence Forces, in its submission to this Office on 18 April 2018, provided details of the searches conducted in response to the applicant’s request. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, it is the position of the Defence Forces that in keeping with the rules of the competition, as outlined in the NCO Promotion Agreement 2017, the board awarded marks as a group and that no individual scores were recorded or retained.
In his submissions to this Office, the applicant argued that the NCO Promotion Agreement 2017 and a related powerpoint presentation dated 9 February 2017 acknowledge that board members individually score candidates’ files before an average score is then awarded. He made reference, in particular, to paragraph 355(d)(1) of the Agreement. That paragraph provides that each Promotion Board member will carry out an independent Sub-File assessment for each candidate and that the Promotion Board will then jointly award marks up to the specified maximum.
Ms Swanwick wrote to the Defence Forces to seek clarification of the matter. In its response, the Defence Forces stated that the board president was consulted and it was confirmed that, in accordance with the NCO Promotion Agreement 2017, only the board members’ jointly awarded score was recorded and that no records of individually awarded scores were created. It stated that when marks were awarded for the sub-file, board members were instructed to read files in accordance with their training and direction. It stated that the board president convened the board and each file was discussed and that on conclusion of this discussion, a verbal score was awarded by each board member and entered into a calculator for accuracy and the average score was calculated and awarded.
While the applicant will, no doubt, be dissatisfied with the explanation given, I have no reason to doubt the submission of the Defence Forces in relation to the scoring processes followed. It is important to note this Office has no role in examining the appropriateness, or otherwise, of those processes. Having considered the Defence Forces’ description of the searches undertaken and the processes and procedures surrounding the scoring of the file review, 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 request. I find therefore, that the Defence Forces was justified in refusing access to the scores awarded by each individual board member in relation to the applicant's file review on the ground that no such records exist.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse access to further records coming within the scope of the applicant’s request under section 15(1)(a) of the FOI Act.
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.