Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records containing complete guidelines/full text dated before 2017 regarding pension entitlements inclusive of a paragraph headlined remarriage and divorce on the ground that no further records other than those already released exist or can be found

23 September 2022

Background

In a request dated 7 March 2022, which she subsequently clarified on 22 March 2022, the applicant sought access to a copy of guidelines concerning the Social Welfare Consolidation Act 2005 (the 2005 Act) that was published on the Department-™s website before 2017 regarding pensions which included a paragraph headlined remarriage and divorce. She said the text concerning remarriage and divorce had to be accessed via a link.

In a decision dated 24 March 2022, the Department refused the applicant-™s request under section 15(1)(i) of the FOI Act, on the basis that it had released certain records on foot of a previous request she had made in November 2019. However, it included a further copy of the records previously released and said there was no link available for the information sought (presumably relating to remarriage and divorce) as the website had been updated multiple times since 2016/2017. In response to the previous request, which was essentially for the same information, the Department had provided copies of three sets of operational guidelines as appeared on the website www.welfare.ie on 22 January 2016, 6 October 2016, and 1 February 2017.

The applicant sought a review of the refusal of her request on the ground that she had not received any records containing the information under the heading remarriage and divorce, following which the Department affirmed its original decision. On 25 May 2022, the applicant applied to this Office for a review of the Department-™s decision.

During the course of the review, this Office sought submissions from the Department in relation to the searches undertaken to identify further relevant records and its reasons for concluding that no further records exist. The Investigating Officer provided a summary of those submissions to the applicant, and invited her to make further submissions. The applicant made further submissions.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my 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 parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While the Department refused the request under section 15(1)(i) on the basis that records had been previously released to the applicant, the applicant argued that the records released did not contain the specific information she was seeking, relating to remarriage and divorce. The Department-™s position is that it has, at this stage, released all relevant records coming within the scope of the applicant-™s request. This is, in essence, a refusal under section 15(1)(a) of the Act on the ground that no further relevant records exist or can be found.

The scope of this review is therefore concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the Act, to any further records apart from those already released regarding guidelines on pension entitlements inclusive of a paragraph headlined remarriage and divorce dated between 2010 and 2016, 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, given the nature of the applicant-™s submissions, I feel it is necessary to state that, 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.

Finally, I note that in her correspondence with this Office, the applicant sought an internal review of this case while the review was ongoing and expressed concern that she was not being given exact copies of the Department-™s submissions. Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures for conducting a review as are appropriate in all the circumstances of a case. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. Reviews undertaken by this Office are inquisitorial, as opposed to adversarial, in nature. While it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration. I am satisfied that all material points raised by the Department in this case have been provided to the applicant in this case.

Analysis and Findings

Section 15(1)(a) of the Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is 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. 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 public body on the basis of which the public body concluded that the steps taken to search for records was reasonable.

In its submissions, the Department said records were already released to the applicant in November 2019 following a review of a previous FOI request. It said that when the applicant sent in the present request, it was refused under Section 15(1)(i) of the FOI Act as the information had already been provided in reply to the previous request. It said that the paragraphs the applicant is seeking in relation to remarriage and divorce are contained within the records released.

The Department said the single remarriage and divorce paragraph referred to by the applicant is two separate paragraphs entitled -˜divorce-™ and -˜remarriage-™, and these were already provided to her. It said that there is no combined -˜remarriage and divorce-™ paragraphs, and that records containing same do not exist. It said that the information contained on the website (the working document) would reference the 2005 Act or the Statutory Instruments as the relevant legislation. It said, for example, under the -˜remarriage-™ title, the information references Section 123 of the 2005 Act as being the relevant legislation, without quoting the actual wording of the legislation.

In her correspondence with this Office, the applicant argued that there was one paragraph headlined remarriage and divorce published over the years until 2017 on the Department-™s site for clients, but most of the time it needed a link to read the subsequent pages. She said she had never received a copy of the text she was referring to from the Department. She said that the paragraph headlined remarriage and divorce remained on the website until September 2017, where the information then changed, and she had previously accessed this via a link provided to her by the Office of the Ombudsman. She provided this Office with a copy of the email containing the link.

The link contained in the email the applicant received from the Office of the Ombudsman in 2013 leads to the gov.ie website, specifically to a publication from the Department that was published on 24 October 2019 and was last updated on 27 September 2021. This website page (the publication) contains the operational guidelines for widow-™s, widower-™s or surviving civil partner-™s (contributory) pension. I note that on the date of this decision there are separate paragraphs for divorce or dissolution of a civil partnership and remarriage or registration of a new civil partnership. It is clear that the link provided leads to the currently published version of the pages on the relevant site and not to the information that was on the site in 2013. Accordingly, the link is of no assistance in this case.

In the three records previously provided to the applicant by the Department, which date 22 January 2016, 6 October 2016 and 1 February 2017 respectively, and were received by this Office in the course of the review, I note that divorce and remarriage are also separate headings.

The applicant contended that since the Department would be able to retrieve historical documents from hardcopy files as well as electronic records, it should be possible to retrieve the previous version of the website she described in her submissions. Following a request from this Office for further information regarding its record management practices,

the Department provided further submissions. It said it maintains a record of what was published on its website, including publications from 14 June 2013 to date. It said the wording of the guidelines on the website set out in relation to divorce changed after September 2017. The Department said its website changes periodically and each time it is updated a record is kept of the previous versions. It said that none of the previous versions held contain a single paragraph headlined -˜remarriage and divorce-™.

In relation to a contention from the applicant that a member of staff in the Department referenced a working document and that this should therefore exist, the Department said no such record could be found. It said that as the information was in the public domain on the website, a copy would not have been kept on a customer-™s file in either hard copy or scanned format. It said that while correspondence between the applicant and the relevant member of staff from 2017 does, indeed, reference a working document, it was unable to find the record in question. It also said that the staff member in question no longer works in the specific pensions office of the Department. It suggested that the working document could have been a printout of the operational guidelines on the website or similar. It said that the information would have been the same as what was on the website so it would not be retained on a client's file. It said it had searched for a record of what was given to the applicant and/or a PDF or printout that might have been on her file, but no records were located.

The Department said that the applicant has been in contact with the widows section correspondence area on numerous occasions in recent years. It said that the area has provided the applicant with links to guidelines, social welfare legislation, in addition to providing hard copies of the legislation on which it made its decisions and answers to the questions that the applicant had asked.

I note that following a further update to the applicant regarding the Department-™s position that no record could be found, she made numerous submissions. It is clear from these further submissions that the applicant is of the view that the document still exists but simply has not been provided to her. She argued that her file would not have had to be searched in order to locate the working document. She said that the document she was seeking was not printed by her as it was over twenty pages long, and noted that the page she sought was page 19 of that document, which she said contained paragraph 123 of the 2005 Act. As noted above, the Department-™s position is that the document referenced by the applicant could not be located.

Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found. Moreover, the Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request. Furthermore, while the applicant is of the view that further records should exist, no specific evidence has been submitted to suggest that further specific searches are warranted in this case.

In the circumstances, and having considered the details of the Department-™s explanation as to why no further records exist or could be found, and in the absence of evidence to suggest that additional specific searches might be warranted, I am satisfied that the Department has, at this stage, taken all reasonable steps in an effort to locate the records sought in this case. While the applicant does not accept that the Department does not hold any records containing the paragraph headlined -˜remarriage and divorce-™, I have no reason to doubt the Department-™s submission that the previous versions of the website and the relevant documentation it holds do not contain a single paragraph headlined -˜remarriage and divorce-™, and that it has taken all reasonable steps to locate the working document referenced by the applicant.

Accordingly, I find that the Department was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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, under section 15(1)(a) of the Act, to further records containing complete guidelines/full text dated before 2017 regarding pension entitlements inclusive of a paragraph headlined remarriage and divorce, on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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