Case Number: 160357

Whether the Department was justified in its decision to refuse access to further records relating to the applicant under section 15(1)(a) of the FOI Act on the ground that no further relevant records could be found

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

On 15 March 2016 the Department received a request from the applicant for all information and records relating to her, and for its relevant rules, regulations, procedures, guidelines and legislation in relation to everything to do with her. The Department identified 9 relevant categories of records relating to the applicant and on 21 April 2016 issued its decision, granting access to records coming under four categories, granting access to some records under coming under one category, while refusing the balance under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found. The applicant's request for internal review was received by the Department on 4 May 2016, and it issued its internal review decision on 24 May 2016, affirming the original decision. By letter received by this Office on 15 July 2016, the applicant sought a review of the Department's decision.

In conducting this review I have had regard to the communications between the Department and the applicant on the request, and to the correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in its decision to refuse access to additional records on the ground that no further records exist or can be found.

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 role of this Office 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. Having regard to the information provided, this Office 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 function of this Office to search for records that a requester believes are in existence.

In its decision, the Department identified blind pension, insurance records, disability allowance, client identity, medical records, supplementary welfare, illness benefit, household benefits and treatment benefits as the general subject areas in which records relating to the applicant could be expected to be found. In its original decision, it released to the applicant records relating to her client identity, blind pension, and her insurance and medical records.

In the course of this review, additional searches were carried out by the Department. Records were located relating to the applicant from the free travel and household benefits scheme. These records were released to the applicant. In relation to disability allowance, the Department released records post-dating 2009 only in its original decision, on the ground that earlier records had previously been released to the applicant. Nevertheless, in the course of this review the Department sent further copies of the pre-2009 records to the applicant.

On foot of queries raised by the applicant in correspondence with this Office, the Department confirmed that searches had been carried out to locate records relating to complaints made by her and matters relating to alleged fraud. In particular, the applicant indicted that she was of the view that a written request by the Department relating to "electronic signature and Safe Registration", which I understand to refer to registration for the Public Services Card, had not been released to her. I note the letter dated 17th October from the Department's Free Travel Section, which was released to the applicant in response to this request, and which would appear to fit the description of what the applicant was referring to. On 26 January 2017 the Department sent the applicant an explanatory letter on the matter and I am satisfied, in any case, that all reasonable searches have been carried out in to locate potentially relevant records, and that those records that were located have been released to the applicant.

The Department also provided the applicant with printed copies of information from its website in relation to disability allowance, supplementary welfare allowance, blind persons' pension, household benefits, illness benefit and free travel. The Department's position was that while this information is in the public domain, as it is available on its website, and is therefore not subject to the FOI Act, it was willing to facilitate the applicant's request. Insofar as it is relevant, I am satisfied that the Department's position in relation to rules, regulations, procedures and guidelines is correct, as it appears that all relevant materials are made publically available on its website, and therefore that the Department is entitled to rely on section 15(1)(d) of the Act as such records are publically available. However, I note the Department's willingness to engage with the applicant, even where no entitlement arises under the FOI Act, in order to facilitate her.

The applicant made a further request in the course of this review that legislation be provided to her. All relevant legislation is available to the general public online, and accordingly section 15(1)(d) also applies. While the Department was not in a position to release such records to the applicant, given the volume of material involved, it recommended that she should seek further assistance at her local Citizens Information Office on the matter.

In its submissions to this Office, the Department stated that, in general, physical records relating to claims are destroyed after six years. It maintains computer records linked to PPS numbers, both for particular types of claims and a central records computer system. It stated that searches were carried out of both systems, including older computer record keeping systems. It stated that its records indicate that in relation to the remaining categories of benefits, supplementary welfare and treatment benefits, the applicant's last claims were made more than 20 years ago. Accordingly, it states that any physical records relating to these benefits have been destroyed.

Having carefully considered the parties' submissions, I am satisfied that the Department has carried out extensive searches of the relevant records and has provided to the applicant all of those records relating to her that can be found. It appears that records relating to the main subject areas where the applicant had dealings with the Department have been located, while all reasonable searches have been carried out to locate other relevant records.

I find, therefore, that the Department was justified in deciding, under section 15(1)(a) of the FOI Act, that no further records coming within the scope of the applicant's request exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision 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.

Stephen Rafferty
Senior Investigator