Whether the Department was justified, pursuant to section 15(1)(a) of the FOI Act, in refusing to release further records to the applicant in relation to his request for access to records relating to his late mother's pension on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken

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
As executor of his late mother's estate, the applicant made a number of FOI requests to the Department seeking records relating to her pension. In essence he is seeking to establish who collected his mother's pension between 2004-2007, when she was confined to hospital. This review concerns what appears to have been a repeat request he made to the Department on 28 August 2015.

By letter dated 28 August 2015, the applicant wrote to the Department stating that, as executor of his late mother's estate, he was submitting a new FOI request. That letter contained no specific information as to the records sought. On 25 September 2015, the Department issued a decision refusing his request as it stated that he had already been provided with all of the relevant records in response to two previous FOI requests. The applicant submitted an internal review request on 29 September 2015. On 12 November 2015, the Department's internal reviewer stated that he was satisfied all papers held by the Department had already been released. He stated that the issue was the identity of who cashed vouchers from his late mother's pension book from 2004 to 2007. He further stated that the identity of the person who signed the vouchers cannot be ascertained as the policy of An Post was to destroy pension vouchers after 15 months.

On 20 November 2015, the applicant sought a review by this Office of the Department's decision.

I note that Ms Sandra Murdiff of this Office contacted the applicant on 2 March 2016 and provided him with details of the Department's submission and informed him of her view that the Department was justified in deciding that no further records exist or could be located after all reasonable steps had been taken to locate them. The applicant indicated that he was not satisfied with her view. Accordingly I have decided to conclude this review by way of a formal binding decision.

In carrying out my review, I have had regard to correspondence between the Department and the applicant as set out above, to correspondence between this Office and the Department and to details of various contacts between this Office and the applicant.

Scope of Review

This review is solely concerned with whether the Department was justified in deciding that no further records relating to the applicant's request for records exist or can be found.

Preliminary Matters
It is relevant to note, as a preliminary matter, that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. If the applicant is dissatisfied with the Department's response to his correspondence concerning his mother's pension, he may wish to contact the Office of the Ombudsman on that matter.

Analysis and Findings

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 cases such as this 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 and also must assess the adequacy of the searches conducted by the FOI 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 FOI body, on the basis of which the FOI 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.

In its submission to this Office, the Department acknowledged that the applicant's solicitors notified it in November 2007 and again in 2008 that pension payments were cashed in the period 2004 to 2007 despite the fact that she was incapacitated. It stated that, unfortunately, it failed to act on that correspondence and no further investigations were carried out at that time. It further stated that An Post confirmed that prior to 2012, records of cashed pension payments were retained for a period of 15 months. As the period in question was 2004-2007, An Post has confirmed that the payment records in question no longer exist

The Department's position is that all records relating to the applicant's mother's pension are held on her file, which was released to him in full in response to his earlier FOI requests. Essentially, it stated that no further records exist or can be located once all reasonable steps had been taken to ascertain their whereabouts.

Notwithstanding the applicant's belief that more relevant records should exist, no evidence has been presented to this Office to suggest that this is the case. Accordingly, taking all of the above into consideration, I am of the view that the Department's decision to refuse to release further records to the applicant was justified, on the basis that no further records exist.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department in this case.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator