Whether the Department was justified in deciding to refuse access to a record relating to the applicant's housing and rent supplement application under section 15(1)(a) on the ground that it does not exist or cannot 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

The applicant submitted a request to the Department on 25 May 2017 for a copy of her Rent Supplement Application form dated September 2009 and in particular a copy of the page signed and stamped by Dún Laoghaire-Rathdown County Council (the Council). On 19 June 2017, the Department released the form with the redaction of some personal information relating to a third party under section 37 of the FOI Act.

On 27 June 2017, the applicant sought an internal review of that decision on the basis that she had not received a signed and stamped version of the form. In its internal review decision of 14 July 2017, the Department stated that it had provided the only version of the form it had in its possession, which was not signed by the Council. It stated that a further search was conducted and it concluded that all documentation presented by the applicant in relation to rent supplement was on file and that the form as described was not presented to support the application. It also enclosed a separate letter dated 8 July 2009 from the Council's Housing Department confirming the applicant's housing need. It stated, therefore, that the request was being refused under section 15(1)(a) on the ground that it does not hold the record as described. On 31 July 2017, the applicant sought a review by this Office of the Department's decision.

During the course of this review, the Department provided this Office with information regarding the searches conducted to locate the record sought by the applicant. Ms McCrory of this Office provided the applicant with details of those searches by letter of 5 October 2017. She also informed the applicant of her view that the Department was justified in deciding that the record sought does not exist or could not be found. As the applicant has indicated that she requires a formal decision on the matter, I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to refuse the applicant's request for a copy of her Rent Supplement Application form dated September 2009 and in particular a copy of the page signed and stamped by the Council under section 15(1)(a) on the ground that the record sought does not exist or cannot be found.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their 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 decision maker concluded that the steps taken to search for records were reasonable.

In a submission to this Office, the Department stated that the existence of the letter on file from the Council confirming that the applicant was registered with it for housing would negate the need for the relevant part of the Rent Supplement Application form to be completed. It also provided details of the searches conducted to locate the record sought by the applicant. It stated that as the Community Welfare Service was under the responsibility of the Health Service Executive (HSE) in 2009, it was not in a position to confirm the then practices in relation to record retention. It stated that the applicant's live files were moved to the Department as part of the centralisation of the Community Welfare Service in Dún Laoghaire in 2013. As outlined above, Ms McCrory of this Office has already provided the applicant with these details.

In summary, the Department stated that, in an effort to locate the record sought by the applicant, it conducted a number of searches in several locations, consulting both the applicant's and any adjacent files. It also consulted members of staff mentioned by the applicant in correspondence with the Department, but no further records were located.

I note the applicant's contention that the letter of 8 July 2009 from the Council may have related to payment arrears she was due dating back to 2007 and that it was not relevant to whether or not the Rent Supplement Application form was signed by the Council. Nevertheless, the fact remains that the copy of the form held by the Department was not signed. Furthermore, I am satisfied, having regard to the details of the searches conducted as outlined above, that it has taken all reasonable steps to locate a signed copy of the form. I find, therefore, that the Department was justified in its decision to refuse the applicant's request for access to the record sought on the ground that it does not exist or cannot be found after all reasonable steps have been taken to ascertain its whereabouts.

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