Mr Y and the Defence Forces

• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 14 May 2015
• Case Outcome: The Senior Investigator affirmed the decision of the Defence Forces to refuse access to further relevant records on the grounds of section 10(1)(a) of the FOI Act.
• Court: Information Commission
• Record Number: 150014
• Respondent: Defence Forces

Whether the Defence Forces was justified in its decision to refuse access to further medical records to the applicant under section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In a request received on 15 September 2014, the applicant requested access to a copy of his personal medical records from the Defence Forces. On 9 and 14 October 2014, the Defence Forces released two sets of records to the applicant relating to his request. On 30 October 2014, the applicant made an internal review request and on 19 November 2014 the Defence Forces released 10 further records relating to his request. On 16 January 2015 the applicant applied to the Commissioner for a review of the Defence Forces' decision.

Following queries from this Office during the course of this review, the Defence Forces has located and released a number of further records to the applicant. It is the Defence Forces' position that it cannot locate any further records relating to the applicant's FOI request.

I note that Ms Sandra Murdiff, Investigating Officer, contacted the applicant by email on 6 May 2015 and outlined her view that the Defence Forces had undertaken reasonable searches for records relating to his request, pursuant to section 10(1)(a) of the FOI Act. Ms Murdiff invited the applicant to make further comments if he disagreed with her view. The applicant replied, and indicated that he remains of the view that further records should exist relating to his request. Accordingly, I have decided to conclude this review by way of a formal binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting this review I have had regard to the Defence Forces' decisions on the matter and its communications with this Office; to the applicant's communications with this Office and the Defence Forces and to the provisions of the FOI Act.

Scope of Review

The scope of this review is solely concerned with whether or not the Defence Forces was justified,...