Whether the Department was justified in deciding that no further relevant records relating to the applicant's Personal Public Service Number (PPSN) exist or can be found

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

The applicant submitted a request to the Department on 28 May 2014 for 'all records held by your Department in relation to the above [applicant's] PPSN -employer/personal'. On 24 July 2014, the Department issued its decision to grant the request.

The applicant was not satisfied with this response and applied for an internal review on 30 July 2014. The applicant contended that a number of records were missing from the Department's response, and that the he could not understand the content of the records released. The Department issued its internal review decision on 17 August 2014. The internal review decision maker upheld the original decision but attempted to address the applicant's concerns by providing an explanation of the meaning of the records already released. The applicant applied to this Office for a review of the Department's decision on 7 December 2014.

During the course of the review, the applicant contended that not all relevant records had been released. In light of the views conveyed by the applicant and the detailed responses of the Department, I consider that this review should be brought to a conclusion by means of a formal, binding decision.

In conducting this review I have had regard to the submissions of the Department on this request and its communications with this Office and the applicant; the communications of the applicant with the Department and this Office; 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.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 Review

This review is concerned with the question of whether the Department was justified in its decision to refuse access to further relevant records coming within the scope of the applicant's request for records relating to his PPSN.

Preliminary Matters

I should explain at the outset 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. Requests for information, as opposed to actual records, are not valid requests under the FOI Act. The applicant contends that the records released by the Department are of a type that are only understandable to an employee of the Department and do not convey the information requested in a format that he can understand. While there is no obligation on the Department under the FOI Act to re-format the records or create new records where the records released cannot be understood by the applicant, I note that it has made efforts to explain the nature and substance of the records to the applicant. I also note that the Department is willing to offer further assistance to the applicant in helping him to understand the records should he wish to avail of this offer.

Analysis and Findings

Section 10(1)(a) of the FOI Act provides that a public body may refuse a request where the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases 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 and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. 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 were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its 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 this Office's website,www.oic.ie).

The Department explained that the applicant has one PPSN, against which it holds records in his capacity both as a private citizen and as an employer. It stated that records relating to the applicant as a private citizen were released in full. In an email dated 2 March 2015 to this Office, the applicant argued that records relating to his staff had been withheld and no explanation given. In a phone conversation with Mr. Christopher Campbell of this Office, the applicant clarified that he was seeking records relating to PRSI payments he had made in respect of his staff including PPS numbers, names and addresses.

The Department argued that that it is not possible for it to provide details of PRSI payments made in respect of the applicant's employees as it does not hold the relevant information. It stated that such information would be received by the Office of the Revenue Commissioners (the Revenue), on foot of a P35 which is completed and submitted to that Office by employers on an annual basis, and that the applicant may wish to contact the Revenue to enquire about obtaining the relevant information. During the course of this review the Department conducted further searches following queries from this Office concerning PRSI payments made by the applicant on behalf of his employees. The Department took a screenshot of its system record relating to the applicant's employer number and administratively released it to the applicant with a cover letter on 28 April 2015. The Department has confirmed that it does not keep records of PRSI paid by employers in relation to their employees.

The Department further stated that its Client Management System (CMS) allows for access to certain details held in relation to employees of a particular employer, including employee earnings, contribution class, total PRSI paid and amount of PSRI paid by employee. The Department argued that although there is a connection between the applicant and certain individuals due to the fact that his PPSN calls up details of his employees, the information comprises the personal information of the employees.

Insofar as the applicant sought access to records held by the Department relating to him in his capacity as an employer, I am satisfied that the information held by the Department relating to his employees comprises personal information relating to those employees. Section 28(1) of the FOI Act provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Having regard to the Department's description of the information held by it relating to the applicant's employees, I find that section 28(1) applies to such information.

Under Section 28(2) there are some circumstances in which section 28(1) of the Act does not apply. I am satisfied that none of the exceptions to section 28(1) apply in this case. Section 28(5) of the Act provides that a record which is otherwise exempt from release under section 28(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information sought would benefit the individuals to whom it relates, as envisaged by section 28(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

In considering the public interest test at section 28(5)(a), I accept that there is a general public interest in the promotion of openness and transparency with respect to information held by public bodies and in optimising accountability in relation to the manner in which public bodies carry out their functions. On the other hand, the language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). When considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. In this case, I am satisfied that the release of personal information relating to the applicant's employees would not serve the public interest to the extent that it would outweigh the privacy rights of those employees. Accordingly, I find that section 28(5)(a) does not apply.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, 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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator