Whether the Department was justified, under section 10(1)(a) of the FOI Act, in refusing to release further records to the applicant in relation to its decision on his application for an Invalidity Pension, on the grounds that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts had 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

On 7 August 2014, the applicant made an FOI request to the Department for all or any information that the Deciding Officer used in reaching a decision on his application for Invalidity Pension. In its decision of 29 August 2014 the Department decided to grant the applicant's request and released in full the seven records it had located. The applicant sought an internal review of this decision on 1 September 2014 contending that the Department had failed to release all medical evidence on file including the signed Medical Assessor's opinion. On 9 September 2014, the Department issued an internal review decision affirming its original decision and explained that the applicant had been provided with all the medical records it held. The Department's Internal Reviewer stated "I regret that I cannot provide a signed copy of the Medical Assessor's opinion dated 05/06/2014 as requested as it does not exist."

While the applicant initially came to this Office seeking a review of the Department's original decision, on 8 September 2014, before the Department's internal review decision had been issued, the internal review actually issued before the applicant's application for review to this Office was accepted. As the applicant indicated he was unhappy with the internal review, this Office decided to review the Department's decision. The Department's position is that it has no further records relating to the applicant's FOI request.

Mr Benjamin O'Gorman of this Office informed the applicant, by letter dated 18 December 2014, of the searches undertaken by the Department to locate all relevant records and of its responses to queries raised arising from the applicant's concerns. In this letter Mr O'Gorman outlined his view that the Department's refusal to grant access to further records on the ground that no further records exist or can be found was justified and he invited the applicant to make further comments if he disagreed with his view. The applicant responded in letters dated 20 December 2014, 31 December 2014, and 5 January 2015, stating that he had not received some of the records nor a schedule of released records from the Department. Mr O'Gorman contacted the Department to clarify its position. The Department confirmed that it had enclosed all the released records when it sent its original decision to the applicant on 29 August 2014, and it agreed to send the records to the applicant again, which it did on 8 January 2015. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In carrying out this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have had regard also to communications between this Office and the applicant, and between this Office and the Department. Finally, I have had regard to the provisions of the FOI Act.

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.

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 further records coming within the scope of the applicant's FOI request on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Preliminary Matters

Section 8(4) of the FOI Act provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons the requester has for making a request. It is important to further note that the Commissioner's remit does not extend to adjudicating on how public bodies carry out their functions generally or to investigating complaints against public bodies.

Analysis and Findings

The Department's position is that it cannot locate further relevant records. Accordingly, section 10(1)(a) of the FOI Act is relevant.

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 his 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).

In its submissions to this Office the Department provided comprehensive details of the searches it undertook in an effort to locate all relevant records coming within the scope of the applicant's request and it provided details of why certain records identified by the applicant were not held by it. As I have outlined above, Mr O'Gorman of this Office has already provided the applicant with details of those searches and explanations. Therefore, while I do not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.

While the applicant may not be satisfied with the Department's responses, he has provided no supporting evidence to suggest that other records do, indeed, exist. The position of the Department is that it cannot find any further records relevant to the applicant's FOI request. Having reviewed the steps taken by the Department to locate the records at issue and having considered its explanation of why certain other records do not exist, I am satisfied that the Department has taken all reasonable steps to locate all relevant records and 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 1997, as amended, I hereby affirm the Department's decision 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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator