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

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background

The applicant asserts that he presented at the Department's King's Inns Street Social Welfare Local Office in Dublin on 25 January 2012 and was verbally refused a social welfare payment. In his submissions to this Office the applicant stated that he asked for this refusal in writing on the day and that the staff member dealing with him would not provide this. On 8 November 2012, the applicant made a request to the Department under the FOI Act requesting "the refusal to payment in writing". The applicant also sought access to CCTV footage at the Department's King's Inns Street office for 25 January 2012.

Having received no reply to his FOI request, the applicant wrote to the Department on 6 December 2012 requesting the information he had sought in his request dated 8 November 2012. The applicant's letter of 6 December 2012 is deemed to be a request for an internal review. The Department replied to the applicant on 11 December 2012 stating it was unable to find a record of him making a claim for Jobseeker's Allowance or any other payment in King's Inns Street Social Welfare Local Office. The Department stated that it was therefore unable to send him copies of any documentation under Section 10(1)(a) of the FOI Act. In relation to his request for CCTV footage, the Department informed the applicant that as it only keeps CCTV footage for 4 weeks, the CCTV footage he requested no longer exists.

On 4 January 2013, this Office received a request from the applicant for a review of the Department's decision.

I note that Mr Richard Crowley, Investigator, wrote to the applicant on 2 April 2013 outlining his preliminary views on the matter and inviting the applicant to comment on his views. On 5 April 2013, submissions were received from the applicant, in which he explained his reasons for disagreeing with Mr Crowley's preliminary view. Mr Crowley also spoke to the applicant by telephone about his preliminary views and the applicant's submissions. I consider it appropriate to conclude the matter at this time by way of a formal, binding decision.

In conducting my review, I have had regard to details of the submissions of the Department, to correspondence between the applicant and the Department and to correspondence between this Office and the applicant, including the applicant's submissions in reply to correspondence from Mr Crowley. I have also had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified in its decision to refuse access to records relating to the applicant's FOI request, for "the refusal to payment in writing" and for access to CCTV footage at the Department's King's Inns Street office for 25 January 2012, on the grounds that the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

The applicant appears to be seeking information which would confirm that he was verbally refused a social welfare payment on the day in question. I should explain that the FOI Act does not require public bodies to create records if none exist and does not oblige public bodies to answer general queries.

Furthermore, section 8(4) of the FOI Act expressly provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the requester has for making a request.

Analysis and Findings

Section 10(1)(a) of the FOI Act provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if- (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"

The Commissioner's role in a case such as this is to review the decision of the public 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 public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie).

The Department stated that it has no record of the applicant making a claim for a payment on 25 January 2012. Details were provided by the Department in its submissions to this Office of the searches it had undertaken in an effort to locate relevant records. The Department also explained its policy in relation to retaining CCTV footage. I note that Mr Crowley, in his letter of 2 April 2013, provided the applicant with details of the searches carried out by the Department and while I do not intend to repeat those details here, they are relevant for the purposes of this decision.

In his submissions to this Office the applicant claims that when he visited the Department's office at King's Inns Street on 25 January 2012, a staff member looked up his contributions record on the computer. The applicant contends that computer records could show that his contributions record was accessed at the Department's Kings Inn Street office on the day in question. In his submissions to this Office the applicant requests that he be provided with a record which shows that his PPS number was looked up at the Department's office on 25 January 2012. As Mr Crowley explained in his letter to the applicant, the role of this Office in reviewing the applicant's FOI request is confined to the scope of his original FOI request and to the Department's decision in respect of any records relevant to that request. In this regard this Office must consider whether the records sought by the applicant in his original request to the Department exist or could be found following reasonable efforts by the Department to find any relevant records.

As noted above, the applicant appears to be asking the Department to provide him with written confirmation of a verbal refusal to payment. The position of the Department is that it cannot find any records that he made a claim and was refused payment. The Department also explained why the CCTV footage sought by the applicant no longer exists. Accordingly, having reviewed the steps taken by the Department to locate all relevant records, I am satisfied that it is reasonable to conclude that the Department has taken all reasonable steps to locate all relevant records coming within the scope of the applicant's request. I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department in this case.

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 eight weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
22 April 2013