BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Case Number: 160138

Whether the Defence Forces was justified in refusing access to further records relating to the applicant's request for risk assessments pertaining to the use of three specified chemical products, on the ground that no further records exist or can be found

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

 

Background

On 7 December 2015, the applicant submitted an amended request to the Defence Forces following a request previously submitted on 23 November 2015. In his amended request, he sought copies of all correspondence to or from the Air Corps Formation Health and Safety Office in the previous six months pertaining to the provision of occupational health surveillance/screening to members of the Air Corps who work or worked with chemicals. He also sought a copy of all risk assessments carried out in the Air Corps over the last 20 years relating to the use of three specified substances.

The Defence Forces issued a decision part granting the applicant's request on 17 February 2016. In relation to correspondence concerning the provision of health surveillance, the Defence Forces granted full access to one email and one letter. It also granted part access to a second email, and refused access to a third email, on the ground that the redacted and withheld information comprised personal information relating to a third party. In relation to the applicant's request for risk assessments, the Defence Forces released six "Risk Control Data Sheets" which referred to chemicals generally or to activities involving the use of non-specified chemicals in the Air Corps, and one record entitled "DF-RA-04 Chemicals/Hazardous Substances".

On 19 February 2016, the applicant sought an internal review of the Defence Forces' decision. In his request for an internal review the applicant said that the Risk Control Data Sheets released were not the records that he had sought. The Defence Forces affirmed its decision in a letter issued on 23 March 2016. The applicant sought a review by this Office of the Defence Forces' decision on 28 March 2016.

During the course of the review, the Defence Forces provided this Office with details of the searches undertaken to locate risk assessments pertaining to the three substances identified by the applicant. Ms Lydia Buckley of this Office contacted the applicant on 20 July 2016 and provided him with details of these searches. She also informed the applicant of her view that the Defence Forces was justified in deciding that no further records relating to the applicant's request exist or can be found, having taken all reasonable steps to locate them. As the applicant indicated that he requires a formal decision on the matter, 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 set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the Defence Forces.

 

Scope of Review

The Defence Forces redacted certain information from one record on the ground that the redacted information comprises personal information relating to a third party. The record comprises an e-mail string with a date range from 14 October 2015 to 8 December 2015. In so far as the string of emails includes emails that were created before the date of the applicant's FOI request, I will consider below the redactions contained in those emails. I have no jurisdiction to consider the redaction made to the email that was created after the date of his request. Furthermore, this review will not consider whether the Defence Forces was justified in refusing access to one further record in its entirety as that record was created after the date of the applicant's request.

Accordingly, this review is concerned with whether the Defence Forces was justified in its decision to redact certain information from the relevant emails that were in existence at the date of the applicant's FOI request and in its decision to refuse access to further records relating to risk assessments carried out in the Air Corps over the last 20 years relating to the use of three specified substances.

 

Analysis and Findings

Redacted Information
The Defence Forces redacted the email address of an individual from the emails released on the ground that it comprises personal information relating to a third party. Section 37(1) of the FOI Act provides for the mandatory refusal of a record where disclosure would involve the disclosure of personal information relating to a third party. I am satisfied that the email address in question comprises personal information relating to the individual concerned. I am also satisfied that none of the other provisions of section 37 which serve to dis-apply the exemption in section 37(1) are applicable in this case. Accordingly, I find that the Defence Forces was justified in its decision to withhold the information in question.

Risk Assessments
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in such cases is to review the decision of the FOI body and to decide whether that 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. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that it has taken all reasonable steps to locate the relevant records. The Office's understanding of its role in these cases was approved by Quirke J in the High Court case Matthew Ryan and Kathleen Ryan v the Information Commissioner (available on this Office's website, www.oic.ie).

In response to a request from this Office, the Defence Forces explained how it conducts risk assessments and provided information on the record management practices applicable to risk assessments. It also provided details of the searches conducted to locate the risk assessments sought by the applicant. As outlined above, Ms Buckley of this Office has already provided the applicant with these details. While I do not propose to repeat those details in full, I can confirm that I have had regard to them for the purpose of this review.

In summary, the Defence Forces stated that not every chemical used by members of the Air Corps is individually risk assessed due to the diversity of chemical used. It stated that no individual risk assessments were created for the three specific substances identified by the applicant and that chemicals were assessed under a generic risk assessment or Risk Control Data Sheet for "Chemicals" or for general categories, i.e. solvents, greases, and oils. It also said that a number of activities which involved the use of chemicals were risk assessed and a generic Risk Control Data Sheet compiled for these activities. The Defence Forces stated that a Risk Control Data Sheet is equivalent to a "risk assessment". It stated that a Risk Control Data Sheet identifies a hazard, outlines the risk factors involved, and specifies the protective or preventative measures to be taken.

In relation to the searches conducted for relevant records, the Defence Forces stated that the electronic database which contains the Risk Control Data Sheets from 2009 - 2015 was searched for records relating to the applicant's request and that manual searches were undertaken in the Formation Safety Office. It stated that the database contains an electronic record of all risk control data sheets from 2009 - 2015 and that the Occupational Health and Safety Risk Management system changed in 2015. I understand, from the details of a submission made by the Defence Forces that the Risk Control Data Sheets maintained on the database and released to the applicant are, in essence, template forms. The first of the sheets released identifies the hazard as "Chemicals". I also understand that the unsigned risk assessment form entitled "DF-RA-04 Chemicals/Hazardous Substances" which was released is also a template which represents a new format of risk assessment, effective from 2016, that also identifies "Chemicals" as a hazard.

While the Risk Control Data Sheets previously released to the applicant are not signed or dated, during the course of this review the Defence Forces said that additional signed and dated versions of these Risk Control Data Sheets exist and that it is willing to release these records. It also said that while the six Risk Control Data Sheets released to the applicant all pertained to one area "Hangar No. 2", it also has Risk Control Data Sheets for other areas in the Air Corps and it is willing to release these records. However, the applicant has made it clear that he does not consider the Risk Control Data sheets to be risk assessments and that he is not seeking access to such records.

The applicant argued that individual risk assessment reports for the specific substances identified by him, as distinct from generic Risk Control Data Sheets for chemicals generally or activities involving chemicals, ought to exist. However, this Office is concerned with ensuring public access to extant records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exists. The question I must consider is whether the Defence Forces has taken all reasonable steps to locate all relevant records held by it coming within the scope of the FOI request.

Having considered the Defence Forces' account of how it conducts risk assessments and the steps taken by the Defence Forces to locate risk assessments relating to the specific products identified by the applicant, I am satisfied that it has taken all reasonable steps to locate the records. I find, therefore, that the Defence Forces was justified in its decision on the ground that no further 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) of the Freedom of Information Act 2014, I hereby affirm the decision of the Defence Forces.

 

Right of Appeal

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 on which notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty