Service records application refusal - Section 38 (1)(a) ?

Discussion in 'Service Records' started by Dubman, Jan 8, 2024.

  1. Dubman

    Dubman Well-Known Member

    Currently, writing a book about the 73rd Anti-Tank regiment.
    During research, I have found many veterans and even more veterans families.
    Most want to know more about their relative's service, so I always suggest them buying a copy of the veterans service records.

    One has done just that, but the records' office won't give him a copy.
    They are quoting Section 38 (1)(a)

    I have helped over a hundred people get their family members service records from WW2, and a few from WW1, yet have never come up against this before.

    The archives have said the family can question it and have the matter looked into again.

    Wondered if anyone has come across this kind of thing before.
    Any idea's on why?
  2. Tullybrone

    Tullybrone Senior Member

    Which act of Parliament does the refusal under Section 38 refer to?
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  3. davidbfpo

    davidbfpo Patron Patron

    On a quick look this appeared, note it a Scottish piece of legislation in 2002. This appears to be the subject:

    There will be an English piece of legislation. Which is: Freedom of Information Act 2000

    Have you looked at the ICO website for help? Ah, here it is:
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  4. bamboo43

    bamboo43 Very Senior Member

    No family has quoted Section 38 to me precisely, but lately, many of the Chindit related families I have helped (hopefully) have contacted me to say their applications for Army records have been denied or if they have received them, severely redacted. Reasons given have been scant, but have included a reluctance to release records in regards to health and medical details and also disciplinary actions against the soldier in question. I should add that most of these are next of kin applications and they have been denied by both Glasgow and TNA.
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  5. RAFCommands

    RAFCommands Senior Member

    Needs more info on how they applied to say grounds for a Section 38 refusal.

    Most commonly this is where the service subject has not died in service and so 116years applies.

    The enquiry has either not supplied a proof of death or presumed death with the application - so 116 years blanket refusal applies


    The service subject has not been dead for over 25 years so partial redaction applies.

    Only Immediate next of kin is considered eg parent or wife not children siblings etc.

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  6. Tullybrone

    Tullybrone Senior Member

    Personally I think there is a lot of inconsistency on how Freedom of Information Act is being applied to service record files - some of which may be due to lack of knowledge of the rules by the member of staff dealing with the application.

    I would always consider asking for the file to be reviewed if there were visible redactions. Obviously if a portion of the file is withheld you might not be aware of it but there is a case for challenging MOD & TNA about their application of the rules. You could ask specific questions such as are there any discipline forms on the file B120 etc or are there any medical forms on the file B178 etc. If they reply in the affirmative you could ask for them to be reviewed with a view to partial redaction.

    If the service man was born more than 116 years ago as I understand it you ought to get the whole unredacted file.

    Last edited: Feb 18, 2024
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  7. bamboo43

    bamboo43 Very Senior Member

    Thanks Steve, I would agree. Most of the families I mentioned are in the process of appealing/questioning the decisions.
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  8. Dubman

    Dubman Well-Known Member

    The soldier in question lived after the war, and left the army in 1946, it is his son who has applied for the records.
    He was a Sgt in the Royal Artillery, I can't see any reason why they won't release his records.
  9. Dubman

    Dubman Well-Known Member

    The soldier in question died in 1994, it is his son who has applied.
    It shocks me that they won't release his WW2 records, it can't be of national security......
  10. Dubman

    Dubman Well-Known Member

    They have also added Section 40 (2)

    The soldier in question died in 1994, it is his son who has applied.
  11. RAFCommands

    RAFCommands Senior Member

    Looking even more likely that a suitable proof of death was not given by son to who holds the record.

    That way within 116 years from birth the record would not be released to a third party (son is not immediate next of kin so treated as general 3rd party enquiry), eg Section 38/40 exemption - and possibly guidance to reapply.

    Note that any Proof of Death sent to MOD at Glasgow will not be passed on to TNA - If record resides in TNA then proof of death needs to be sent to TNA with TNA FOI request for record.

    Last edited: Jan 9, 2024
  12. Skoyen89

    Skoyen89 Senior Member

    I am coming across others who have applied to the MOD/TNA and are finding that their applications have been refused or large chunks are redacted. Sometimes the redactions are for information in the public domain -eg next of kin which is in marriage records, probate records etc.

    Is there a written process covering applications to TNA and how to appeal etc?
  13. Dave76

    Dave76 Member

    Yes, there is a process. When my FOI application was being processed , TNA sent instructions on how to to make an internal appeal if I was dissatisfied with the progress or the outcome. On TNA website they also list how make a compaint.

    If you are dissatisfied with the TNA review, the issue can be raised further with the Information Commissioner, who has statutory oversight of the FOI Act. However after reading a number of their determinations, it appears that the review will be at the level of: Does the TNA have the right to withold medical or personal information under the FOI Act, Yes they do, end of the review. The Information Commissioner does not appear to assess the information that the TNA is witholding.

    In defence of TNA staff, they may be unaware or unsure of what is in the public domain therefore redactions may be a safer option.

    As has been stated previously, if it is less that 116 years since dob and/or 25 years from death, TNA are probably going to redact something in a record.
  14. Robert999

    Robert999 Member

    Redacted from my grandfathers records were the birth of my father and aunt, so ok this may fall under the privacy act, but as pointed out this information is freely available anyway. The bit that raised my eyebrows was the fact that they had included someone else's B117 which is worrying. I think it may well be luck as to who you get to handle the case file. :)

  15. MalcolmT

    MalcolmT New Member

    I applied for my father's service record. He died in 1983. Of the 26 pages 13 have been redacted under section 41 foi - MOD says they have medical records attached. Wiltshire regiment has no record of him being wounded. On his records that are not redacted, it says on the 7th of July 1944 he was admitted to 129 Field Ambulance. records show the 129 Field Ambulance was non-operational at the time. He was downgraded by the Medical Board to C1 and posted to HQ12 LofC - does anybody know what this means?
  16. Charley Fortnum

    Charley Fortnum Dreaming of Red Eagles

  17. RosyRedd

    RosyRedd Senior Member

    Hi Malcolm - if you're also asking about the C1 grading, this link should help (see AB64's #15 post): Medical Board category
  18. Tullybrone

    Tullybrone Senior Member

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  19. davidbfpo

    davidbfpo Patron Patron

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