Whether the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant's requests for additional records relating to applications made by him and his wife for State pensions on the ground that no further relevant records exist or can be found apart from those already released

3 November 2020

Background

This decision is a composite decision relating to three cases that have their background in a dispute the applicant and his wife have with the Department over the Department’s assessment of the couple’s State Pension Non Contributory (SPNC) entitlements. It appears that the applicant is in receipt of an SPNC and had been in receipt of a qualified dependant adult payment in respect of his wife. On turning 66, the applicant’s wife applied for an SPNC in her own right, at which point the means of the couple were reviewed in order to assess the entitlements of the applicant’s wife.

According to the Department, the Deciding Officer concluded that the applicant’s wife had failed to declare income in her SPNC application. Amongst other things, the Deciding Officer considered that the applicant’s wife was operating as a self-employed acupuncturist and had failed to declare her resulting income. Furthermore, the Department stated that the applicant failed to disclose his receipt of a compensation settlement, or details of how the settlement was disposed of. Failure by the couple to comply with numerous requests for information sought on their means for SPNC assessment purposes resulted in the disallowance of the application made by the applicant’s wife.

The Department said the applicant and his wife have made 13 FOI requests for records relating to this matter. It said it has also released information to the couple outside of FOI. This review concerns three of those 13 requests:

1. On 27 October 2019, the applicant sought all records held by the Department relating to his wife providing acupuncture or having an acupuncture business (FOI 2019-14439).
2. On 4 December 2019, he sought all records relating to matters concerning him and the investigation of his wife’s application for SPNC. He identified, in particular, nine categories of records relating to the investigation (FOI 2019-14761).
3. On 6 December 2019, he sought all records relating to matters concerning him and his wife’s application for SPNC. He identified, in particular, 10 categories of records relating to the couple’s dealings with two named Social Welfare Inspectors (FOI 2019-14760).

I note that an application for review by this Office of a decision of the Social Welfare Appeals Office (the SWAO) was made by the applicant’s wife and concerns similar issues. I will deal with that review, OIC-92953-L2Y8L5, in a separate decision. However, it is relevant to note here that the request in that case was a joint request by the applicant and his wife for all records relating to the SPNC application made by the applicant’s wife.

The Department granted Request 1 in part. It granted access to the complete SPNC file for the applicant with the redaction of information relating to his wife under section 37 of the Act. The decision noted that there were no records on the file relating to his wife’s alleged acupuncture business but said that if there were, it would not have been in a position to release such records without his wife’s consent. Following a request for internal review, the Department affirmed its original decision on 23 December 2019.

Request 2 was refused under section 15(1)(i), on the basis that all records relating to the application made by the applicant’s wife for an SPNC had previously been released to his wife. That decision was affirmed at internal review stage on 4 February 2020. The internal review decision noted that any documents part-granted or refused in a decision on request FOI 2019-14760 (Request 3) had been released in full as signed authorisation from the applicant’s wife was provided.

Request 3 was also refused under section 15(1)(i). Following a request for internal review, the Department varied its original decision on 3 February 2020. It released all of the information which had previously been withheld under section 37 of the FOI Act in respect of request FOI 2019-14439 (Request 1), as it stated it had now been authorised by the applicant’s wife to release her personal information.

By letters dated 22 May 2020, and 23 June 2020, the applicant sought reviews by this Office of all three of the Department’s decisions. During the course of the reviews, this Office sought submissions from the Department in relation to records provided to the applicant and the searches undertaken to identify further relevant records. Ms Whelan of this Office provided a summary of those submissions to the applicant, and invited him to make further submissions. The applicant made further submissions.

I have now completed my reviews in accordance with section 22(2) of the FOI Act. Having regard to the overlap in the three requests, I have decided to conclude the reviews by way of a formal, binding composite decision. In conducting the reviews, I have had regard to the correspondence between the applicant and the Department as outlined above and to communications between this Office and both the applicant and the Department on the matter. I have also had regard to the submissions of the SWAO in relation to case OIC-92953-L2Y8L5, insofar as they are relevant to this review.

Scope of Review

There is a significant overlap between the three requests made by the applicant outlined above and between those requests and a number of other requests the applicant and/or his wife submitted to the Department relating to the substantive issue of the Department’s consideration of their SPNC applications. Essentially, his requests broadly cover all records held by the Department concerning those applications. The Department’s position is that it has released all relevant records.

I note that the Department released records on a number of occasions, both on foot of some of the 13 requests made and outside of the FOI process. In its submissions to this Office during the review, the Department said that during its processing of the first request it received from the applicant and his wife (FOI-2019-13827), its internal reviewer contacted the applicant to clarify what additional information was sought as according to the Department’s records, a copy of the full file had already been provided outside of the FOI process. As a result of that conversation, the Department released additional correspondence, namely correspondence between the applicant’s wife and the Department and an Appeals submission. According to the Department, at that stage the entire SPNC file for the applicant’s wife had been provided to her.

Furthermore, in submissions the SWAO made to this Office in the course of review OIC-92953-L2Y8L5, the SWAO provided a schedule of records, comprising the full SPNC file of the applicant’s wife, that were released to the applicant’s wife by the Department in response to an FOI request received on 18 October 2019 (FOI 2019-14308). The SWAO reissued copies of those records to the applicant’s wife on 11 November 2019.

As outlined above, on foot of request 1 (FOI 2019-14439), the Department granted access to the complete SPNC file for the applicant with the redaction of information relating to his wife, and that redacted information was subsequently released on foot of Request 3.

As noted above, requests 2 and 3 were refused under section 15(1)(i) of the Act. That section provides for the refusal of a request where the request relates to records already released, either to the same or a previous requester, where the records are available to the requester concerned or where it appears that the requester is acting in concert with a previous requester.

Having considered the various submissions made by the applicant during the review, it seems to me that at no stage during the review process has he identified any specific records the Department says it has released to him that were not in fact released or that are not available to him. Instead, it appears his primary concern is that is that he did not receive all relevant records held by the Department.

Accordingly, in my view it is neither practical nor necessary for me to attempt to identify each and every record released to the applicant and/or his wife at each stage of the engagements between the parties to determine if any of those records were not, in fact, released or if any of those records are not available to the applicant. I accept the Department’s assertions that it has released all the records it says it released.  The question remaining, therefore, is whether the Department holds other relevant records, apart from those already released, that it did not release. The Department’s position is that it does not.

Section 15(1)(a) provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is concerned solely with whether the Department was justified in refusing to release any further relevant records apart from those already released on the ground that no further relevant records exist or can be found.

Preliminary Matters

Before I address the substantive issues arising, I wish to address a number of preliminary matters.

First, it is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

Secondly, I note that much of the applicant’s argument is concerned with the manner in which the Department dealt with the substantive issues relating to the processing of the SPNC applications and with the decision taken on his wife’s application. As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As outlined above, our role is limited to determining whether the Department was justified in refusing to release additional relevant records on the ground that no further relevant records exist or can 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 sought 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 its submissions to this Office, the Department provided details of searches conducted in an effort to locate all relevant records coming within the scope of the applicant’s requests. During the course of this review, Ms Whelan of this Office provided the applicant with details of those searches. As such, I do not propose to repeat them in full here. In short, the Department outlined the types of records that are created in cases such as this and the location of the searches it undertook. It stated that it consulted with relevant staff in order to determine whether any further records were held. It considers that all relevant records have been provided to the applicant. 

The Department explained that all documents it receives are scanned onto a customer’s electronic file under that customer’s PPS number. The Department consulted with the relevant staff members who confirmed that they had scanned all documentation onto the relevant files. As such, the Department’s position is that it has released all records coming within the scope of the applicant’s requests and that it holds no further relevant records. 

On the matter of records relating to the alleged self-employment as an acupuncturist, the Department said that all records it holds have been released to the applicant and/or his wife and are held on their respective SPNC files. It stated that no it holds no business records relating to said acupuncture business, as no such records have been provided to it. Indeed, I note from the applicant’s submissions that is it his belief and contention that no records exist or have ever existed in relation to the alleged acupuncture business.

In a telephone conversation with Ms Whelan of this Office on 8 September 2020, the applicant stated that he had retained all records the Department had provided to him. During that conversation, he stated that he was still seeking three documents from the Department, but to date he has not identified those documents.

Having examined the applicant's submissions, it seems to me that he believes the Department should be in a position to provide additional records to substantiate the allegations made concerning his wife’s self-employment as an acupuncturist, apart from the information already released. The Department’s position is that he has access to all of the relevant records. The question of whether or not the information held is sufficient to support the Department’s decision on the SPNC application is not a matter for this Office.

In this case, the applicant has presented no evidence to support his view that the Department holds further relevant records. Indeed, he appears to hold the view that no such further records could exist, given his assertion that his wife is not employed as an acupuncturist as alleged. In the circumstances, having regard to the Department’s explanation of the records that have been released to date and of the searches it undertook to look for additional relevant records, I am satisfied that all reasonable steps have now been taken by the Department to search for further records. I find, therefore, that the Department was justified in refusing the request for additional relevant records under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Department’s decision to refuse, under section 15(1)(a) of the Act, the applicant's requests for additional records relating to its consideration of SPNC applications made by him and his wife on the ground that no further relevant records, apart from those already released, 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