Irish Information Commissioner's Decisions

Whether the Department was justified in its decision to refuse access to any additional records coming within the scope of the applicant's request under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found.

27 September 2018

Background

In a request the Department received on 12 September 2017, the applicant sought access to all of her records from 1 January 2014 onwards, to include one parent family records, community welfare records, and rent supplement records. On 20 September 2017 the Department issued a decision in which it granted access to the majority of the 157 records it identified as coming within the scope of the request but refused access to 6 records and redacted information on 17 records under section 37(1) of the FOI Act on the grounds the information in question was personal information relating to third parties.

The applicant sought an internal review of that decision on 12 October 2017. The Department issued its internal review decision on 10 November 2017 in which it released 22 of 27 additional records located. It refused access to two of the records and granted partial access to the remaining three. On 28 November 2017, the applicant sought a review by this Office of the Department's decision, stating her belief that further records existed in relation to her request that had not been considered for release.

During the course of the review, the Department noted that a number of records were omitted in error when processing the applicant's request. It released those records apart from one email and a small amount of information in a number of the records under section 37(1). It also provided this Office with details of the searches undertaken to locate all relevant records. Ms Hannon of this Office provided the applicant with those details and informed the applicant of her view that the Department was justified in deciding that no further records existed.

The applicant remains of the view that she has not received all relevant records. Accordingly, I have decided to bring this review to a close by issuing a binding decision on the matter. In conducting the review, I have had regard to the correspondence between the applicant and the Department as set out above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records coming within the scope of the applicant's request that were provided to this Office by the Department for the purposes of this review.

Scope of the Review

During the course of the review, the applicant indicated that she did not require this Office to review the decision of the Department to redact certain third party information from the records at issue. Rather, she was concerned that the Department has not identified and considered for release all relevant records coming within the scope of her request. Ms Hannon of this Office emailed the applicant on 18 January 2018 and informed her that the scope of the review had been narrowed to the question of whether further records exist and I note that the applicant did not take issue with that approach in her subsequent correspondence with this Office

Accordingly, this review is concerned solely with whether the Department was justified in refusing access to any other rerecords coming within the scope of her request apart from those already considered for release on the ground that no further relevant records exist or can be found.

Preliminary Matters

Section 13 (4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that in this case the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of the public interest. 

I should note that the applicant has a second application for review of the Department's decision regarding an FOI request for her Rent supplement file held by the Department from the period 1 September 2017 to 31 October 2017. A separate review decision has issued in relation to this matter.

Analysis and Findings

Section 15 (1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record sought 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 decision and I 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. 

In submissions to this Office, the Department provided details of the applicable record management policy and details of the searches conducted to locate the records sought by the applicant. As outlined above, Ms Hannon provided the applicant with these details. She also provided her with an account, supplied by the Department, of how correspondence is processed and stored in relevant sections of the Department, and while I do not propose to repeat these details in full here, I confirm that I have had regard to them for the purposes of this review.

In summary, the Department stated that both manual and electronic searches of hardcopy and electronic files were undertaken to locate relevant records. It stated that all relevant computer systems were searched using specific search terms including its recording and payments system using names and PPS numbers. It said there was also a physical search of all relevant areas in the relevant Rent Unit, Branch office, Community Welfare Support office and Intreo Centre. All relevant individuals were consulted and their records searched. 

In submissions to this Office, the applicant stated that some correspondence was missing from the records released to her by the Department. In particular, she highlighted that her rent supplement was suspended in January 2017 and that her one parent family payment was suspended in May 2017 and she argued that there should be records relating to those suspensions. She also argued that digital files were not released to her.

This Office sought clarification from the Department on the matter. In response, the Department stated that the applicant's rent supplement was wrongly suspended in January 2017 due to a Departmental error. It stated that this was rectified and the applicant received her full rate of rent supplement entitlement the following week. It stated that as the payment was suspended in error, there were no documents on file.  

As regards the suspension of the applicant's one parent family payment, the Department stated that following an interview with a Social Welfare Inspector in May 2017, the applicant was given an IN96 form requesting further specified information. It stated that the IN96 form has a declaration at the bottom which was signed by the applicant (document no 74 on the FOI Schedule) declaring that the applicant agreed to supply the information within the next 7 working days and that she was aware that a failure to do so may result in the claim being closed or the payment being affected. 

The Department further stated that the applicant failed to supply the requested documents/information and that her payment was suspended as a result. It stated that no other records relating to the suspension existed as the IN96 form is used as natural justice having informed the applicant that her payment may be affected if she failed to provide what was requested. It added that that the suspension was lifted in October 2017 on foot of receipt of the Social Welfare Inspector's completed report and that no letter issues when a suspension is lifted. 

The Department also described it's policy on digital files of payments on its payment system ISTS. Regarding One Family Parent payment it said screenshots/printouts are generally not put on a file. It said an inspector may print them off during an investigation but would shred it once the report was complete and would not put hard copies on the files. It said copies of ISTS screens are only added to a claimants file when deemed necessary by the Deciding Officer for Rent Supplement. It said due to the regularity of the income of the applicant there was no requirement to add ISTS screens to her file.

In essence, the Department did not consider that the applicant's request covered screenshots of payments made under the relevant schemes and instead treated her request as a request for records held on the relevant files. In my view, this was a reasonable interpretation of the applicant's request. At no stage during her engagements with the Department did she express any concerns as to the absence of records relating to the payments she had received. As such, I am satisfied that such records did not come within the scope of her request. If the applicant still requires copies of such records, it is open to her to submit a fresh request to the Department for them.

The general thrust of the applicant's arguments is that she believes certain other records should exist, having regard to the nature of her engagements with the Department. However, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist. The FOI Act is concerned with the provision of access to records actually held and it does not provide a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exist. It is also worth noting that even if the evidence suggests that certain records may have existed at some stage, my role is confined to considering whether the Department has taken all reasonable steps to locate those records. Unfortunately, it sometimes happens that records known to exist simply cannot be found. The FOI Act does not require public bodies to search indefinitely for records. I would add that I do not consider this to be such a case. 

The position of the Department is that it has taken all reasonable steps to look for records of relevance to the applicant's request. Having regard to the Department's description of the searches undertaken and of the explanations provided, I am satisfied that it has taken all reasonable steps to locate relevant records. I find, therefore, that the Department was justified in refusing the applicant's requests for further records under section 15 (1)(a) of the FOI Act. on the ground that no further relevant records exist or can be found. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Department-™s decision to refuse access to any further records coming within the scope of the applicant's request apart from those already considered for release under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found.

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