Whether the SWAO was justified in refusing access, under section 15(1)(a) of the FOI Act, to an Index of Precedents used by it on the ground that no such record exists
11 September 2020
Background
In a request dated 4 June 2019, the applicant sought access to an Index of Precedents used by SWAO “as required under the Freedom of Information Act”. In a decision dated 25 June 2019, SWAO refused access to the request under section 15(1)(a) on the ground that no such record exists. It said the FOI Act 2014 does not contain a requirement that such an index be maintained.
In his application for an internal review of that decision, the applicant referred to a decision made on his Disability Benefit Appeal in 2000 and said that the applicable FOI legislation at the time was the FOI Act 1997, which required public bodies to maintain and publish an Index of Precedents. He noted that the Act requires that “the Act requires the recording and publication of precedents” and he suggested that there must be hundreds of precedents.
On 13 August 2019, SWAO affirmed its refusal of the request under section 15(1)(a). On 11 February 2020, the applicant sought a review by this Office of SWAO’s decision.
During the course of the review, SWAO made a submission to this Office in which it explained why it found that the record sought does not exist. The Investigating Officer informed the applicant of the details of SWAO’s submissions and of her view that SWAO was justified in deciding that no relevant records exist. The applicant subsequently provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.
I have now completed my review under section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between SWAO and the applicant as outlined above and to correspondence between this Office and both SWAO and the applicant on the matter.
Scope of Review
In a submission dated 26 May 2020, the applicant referred to correspondence he has had with SWAO over a number of years wherein he sought both “an index of precedents” and “precedents”. He said the kernel of his request has always been precedents which SWAO is “required to keep, publish and apply where relevant.
Having regard to the wording of the applicant’s request, I am satisfied that he sought an index of precedents. He did not seek access to the precedents themselves, if such records exist. Therefore, the scope of this review is concerned solely with whether SWAO was justified, under section 15(1)(a) of the Act, in refusing the applicant’s request for access to an Index of Precedents used by SWAO on the ground that no such record exists.
Preliminary Matters
Before I address the substantive issue arising, I would like to make the following preliminary comments.
First, 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 record 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).
Secondly, under section 8(1) of the FOI Act, FOI bodies are required to prepare and publish information about themselves, known as a publication scheme. Among other things, a publication scheme must include any precedents kept by the body for the purposes of decisions, determinations or recommendations, under or for the purposes of any enactment or scheme administered by the body with respect to rights, privileges, benefits, obligations, penalties, or other sanctions to which members of the public are or may be entitled or subject under the enactment scheme (section 8(2)(e)(ii) refers). It is important to note that this review, which was undertaken under section 22(2) of the Act, is not concerned with whether SWAO’s publication scheme complies with the provisions of section 8. Rather, it is confined to determining whether SWAO was justified in refusing the request under section 15(1)(a).
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.
SWAO’s Submission
In its submissions to this Office, SWAO provided an explanation to why it does not hold the record requested by the applicant. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, SWAO said that an index of precedents does not exist as social welfare appeal decisions are individual decisions which are determined on their own particular facts and which do not form binding precedent. It said that, for this reason, SWAO does not maintain an index of precedents.
SWAO said it maintains a database of all decisions made by Appeal Officers. In 2019, there were 16,594 such decisions. It said that the individual decision records on the database contain personal information that is, of its nature, confidential. It explained that there is a facility on the database which allows an Appeals Officer to categorise a decision as a “case of interest” or a “significant case” but that this facility is not utilised in a consistent or uniform manner. It said the system is not intended to highlight precedents. SWAO said that cases published in the Chief Appeals Officer’s annual report are not chosen and published as precedents but as indications of the types of appeals dealt with by the Office and the matters considered in dealing with such cases. SWAO said the Office does maintain a stock of precedents and, consequently, there can be no “Index of Precedents”.
The Applicant’s Submissions
In his application to this Office and during the course of this review, the applicant provided a number of detailed submissions. While I have considered the entirety of these submissions, I do not consider it necessary to repeat them in full here.
In response to SWAO’s assertion that SWAO decisions are individual decisions which are determined on their own particular facts and do not form binding precedent, the applicant argued that this suggests no legal challenges or court rulings correcting decisions, clarifying laws and standards ever amount to precedent being formed and codified by SWAO or that Office being bound by same. He suggested that such a position is not credible. He argued that precedents and treating like cases alike are a fundamental element in the administration of justice in areas of law and administration, including quasi-judicial offices, such as SWAO, deciding upon citizens’ social insurance and other rights and entitlements.
The applicant also argued that the classification of a case as “significant” or “of interest” in the SWAO database demonstrates that precedents are categorized or indexed. By reference to definitions of “significant” he submitted that the “significant case” classification is akin to precedent. The applicant argued that the classification is an example of misfiling or mistitling and such cases are in fact precedents. He further submitted that even if precedents are not applied in a consistent manner, this does not deprive them of the status of precedents. He argued that SWAO’s admission that they use these cases, albeit in an inconsistent manner, demonstrates that they are in fact precedents.
The applicant further submitted that even if records did not exist, the precedents could be extracted from SWAO’s database. The applicant said that the selective publishing of cases in the SWAO Chief Appeals Officer’s annual report occurs in a “truncated and selected form” which is a breach of fair procedure and does not satisfy the requirement to publish precedents.
Analysis and Findings
It seems to me that the fact that the SWAO maintains a database of past decisions does not, of itself, mean that all such decisions must be regarded as precedent. On the other hand, while I accept SWAO’s argument that its decisions are individual decisions which are determined on their own particular facts, I would fully expect that the database of past decisions would provide a valuable research tool for SWAO staff. For example, the database might be consulted for guidance as to how similar issues arising in any particular case were dealt with previously.
The only question I must consider, however, is whether an index of precedents exists. On this point, it seems to me that it is not plausible to argue that the database of decisions is, in effect, a database of precedents. I note that the data base contained over 16,000 decisions in 2019. Clearly, not all of those decisions could be considered as precedents used by SWAO. I would expect that a large number of such decisions would be regarded as routine and would comprise little or no information that might provide precedent value for SWAO staff. As such, I am satisfied that even if it is possible to extract an index of all decisions from the database, such a list would not comprise an index of precedents used.
Furthermore, I accept the SWAO’s assertion that the facility on the database which allows an Appeals Officer to categorise a decision as a “case of interest” or a “significant case” is not utilised in a consistent or uniform manner and that it is not intended to highlight precedents. It seems to me that such a process does no more than provide further assistance to SWAO staff who might wish to carry out more refined searches of the system for research material or, indeed, guidance on issues arising in current cases. In the particular circumstances, I accept that the extraction of an index of such cases, if it is possible, would not comprise an index of precedents used.
Accordingly, having considered the explanation given by SWAO as to why no index of precedents used exists, I find that it was justified in refusing the request under section 15(1)(a) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I affirm the SWAO’s decision to refuse, under section 15(1)(a) of the Act, the applicant’s request for access to an Index of Precedents used by SWAO on the ground that no such record exists.
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