Whether the Department was justified in its decision to refuse access to the applicant-s disability allowance file from the period 4 September 1996 to 17 July 1997 under section 15(1)(a) of the FOI Act on the ground that the records sought no longer exist
16/04/2019
Background
On 24 January 2018 the applicant submitted a request to the Department for access to records relating to her, including disability allowance records for the period 4 September 1996 to 17 July 1997, records relating to the decision to stop her disability allowance payment and the overpayment to be re-paid, and records of her supplementary welfare allowance payments.
On 22 February 2018, the Department part granted the request. It released a number of records to the applicant, redacting certain information from one page of the records and refusing access to another page under section 37(1) of the FOI Act. It also refused access to the applicant-s 1996/1997 disability allowance file under section 15(1)(a) on the ground that the records in question no longer exist.
On 9 March 2018, the applicant sought an internal review of the Department-s decision to refuse access to her 1996/1997 disability allowance file, following which the Department issued its internal review decision in which it affirmed its original decision to refuse access to that file under section 15(1)(a). On 2 October 2018, the applicant sought a review by this Office of the Department's decision.
During the course of the review, the Department provided this Office with details of its record management practices and of the searches it carried out in an effort to locate the applicant-s disability allowance file for the relevant period. Ms Swanwick of this Office provided the applicant with those details and informed her of her view that the Department was justified in refusing access to the records sought under section 15(1)(a) of the FOI Act. She also invited the applicant to make a further submission on the matter.
As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.
Scope of Review
The scope of this review is concerned solely with whether the Department was justified in refusing access to the applicant-s disability allowance file for the period 4 September 1996 to 17 July 1997.
Preliminary Matter
In her correspondence with the Department and with this Office, the applicant expressed concerns about the manner in which the Department treated her over the years in relation to her welfare entitlements and she explained that she requires access to the records in question so that she can understand why it acted as it did. It is important to note at the outset that this Office has no role in examining the administrative actions of public bodies in the performance of their statutory functions.
Furthermore, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).
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 sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in -search- cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In submissions to this Office, the Department provided details of the searches conducted to locate the file sought by the applicant and of its record management practices. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Department explained that records are stored at both on-site and off-site locations and stated that all relevant areas were searched, including Disability Allowance Awards, Disability Allowance Payments/Maintenance, Disability Support, and the Control section. It noted that electronic and manual searches were carried out, using the applicant-s name and personal public service number (PPSN) as search terms.
It is the Department-s position that the applicant-s disability allowance file for the period 4 September 1996 to 17 July 1997 has been destroyed. It explained that the applicant's 1996/1997 file would have been attached to the file of a subsequent disability allowance claim made by her in May 2006, which was refused/terminated by the Department in January 2007. It explained that the date of decision on claim determines when a file may be destroyed and that in May 2017 authorisation was given to its off-site storage provider to destroy those files which were refused/terminated in January 2007 (i.e. the 2006 file with the 1996/1997 file attached).
In light of the Department's submission, Ms Swanwick of this Office wrote again to the Department to seek clarification as to how a number of records pertaining to 2006 were released by the Department in response to the applicant's FOI request if the 2006 file had been destroyed as stated. In response, the Department explained that some 2006 records were released to the applicant under a previous FOI request made by her in 2015 and those records were re-released to her in response to the FOI request which is the subject of this review.
Ms Swanwick also sought further details in relation to the overpayment that had been assessed against the applicant in circumstances where the original file no longer exists. The Department explained that in this case, the Criminal Assets Bureau (CAB) made the decision to stop the applicant's disability allowance payment and that CAB would have had the file at that stage. It stated that when CAB made the decision, the Department would have calculated the amount of overpayment and CAB would have issued the decision to the customer and would pursue the customer for payment of the outstanding amount. It stated that the file would have been returned to the Department and was subsequently destroyed as it would have been attached to the 2006 file that was authorised for destruction in May 2017.
I appreciate that the applicant will be disappointed to find that the Department no longer holds the file in question. However, as I have outlined above, the remit of this Office is confined to considering whether the decision taken by the Department on the applicant's FOI request was in accordance with the provisions of the FOI Act. In light of the explanations given by the Department, I am satisfied that the Department was justified in refusing access to the applicant-s disability allowance file for the period 4 September 1996 to 17 July 1997 on the ground that the records sought no longer exist.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access the applicant-s disability allowance file for the period 4 September 1996 to 17 July 1997 under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist.
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
