Whether the FSPO was justified in refusing access, under section 15(1)(a), to the qualifications of the person who heard the applicant-�s case against a named insurance company at the time the case was being dealt with on the ground that no relevant records exist or can be found 

11 November 2022

Background

The applicant in this case made a complaint to the FSPO (then the Financial Services Ombudsman Bureau, hereafter -�the FSOB-�) in 2011 regarding a refusal of his claim by a named insurance company. The FSOB issued a decision in 2012 rejecting the applicant-�s complaint, following which the FSOB case was closed as no appeal was made to the High Court within 21 calendar days of the date of the decision.

In a request dated 19 January 2022, the applicant sought details of the qualifications of the person who heard his case against the insurance company at the time. In its decision dated 1 March 2022, the FSPO identified the then Deputy Financial Services Ombudsman as the relevant person. It explained that the Deputy Ombudsman was appointed to his position in 2010 following a public competition which was conducted by the Public Appointments Service (the PAS). It said the FSPO was not privy to the details of the qualifications of any of the candidates considered by the PAS in the course of the relevant competition in 2010. It therefore refused the request under section 15(1)(a) of the FOI Act on the ground that it holds no relevant records.

The applicant sought an internal review of that decision. On 8 April 2022, the FSPO affirmed its refusal of the request under section 15(1)(a). On 18 August 2022, the applicant applied to this Office for a review of the FSPO-�s decision.

The Investigating Officer subsequently provided the applicant with details of the FSPO-�s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that records containing the qualifications of the then Deputy Ombudsman do not exist or cannot be found. The applicant was invited to make a further submission on the matter, and he subsequently made a further submission.

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 FSPO as outlined above, and to communications between this Office and both the applicant and the FSPO on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

I note that in his application for review, the applicant said he required details of -�the exact qualifications thateach personheld at the exact time they heard my case-� and -�what specific legal qualificationseach of those personsheld at the exact time they made their decision-� (my emphasis). This suggests that the applicant believes that more than one individual may have been involved in making the relevant decision. In its submissions to this Office, the FSPO explained that the finding in respect of the complaint was made by the appointed Deputy Financial Services Ombudsman at that time. I have no reason to dispute this and I note that the FSPO provided the applicant with the name of the then Deputy Ombudsman in its decision on the FOI request.

Accordingly, this review is concerned solely with whether the FSPO was justified in its decision to refuse access, under section 15(1)(a) of the Act, to records containing the qualifications of the then Deputy Ombudsman on the ground that the records sought do not exist or cannot be found.

Preliminary Matters

Before I address the substantive issues, I would like to make some preliminary comments.

First, for the benefit of the applicant, I wish to explain that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. In the circumstances, I will consider whether the FSPO was justified in refusing access to any relevant records containing the information sought in this case.

Secondly, while I can appreciate how important it is to the applicant to obtain access to the records at issue, 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).

Finally, during the course of the review, the applicant expressed concerns about how the FSPO had handled his complaint, as well as his request for access to the qualifications of the relevant individual(s). It is important to note that this Office has no role in examining the administrative actions of FOI bodies in the performance of their functions. Our role is confined to reviewing the decision taken on the applicant-�s FOI request.

Analysis and Findings

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case 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/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the FSPO provided this Office with details of searches it undertook in an effort to locate relevant records and of its reasons for concluding that no records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In summary, the FSPO said that any relevant records, if they existed, would have been transferred to the FSPO by its predecessor, the FSOB, and no such records were located after numerous searches, and there was no indication found that any such records were held by the FSOB at any stage and would therefore be held now by the FSPO. It said that according to the FSOB-�s HR records, the Deputy was appointed by the Financial Services Ombudsman Council (an organisation appointed by the Minister for Finance to supervise and assist the FSOB) in accordance with the Central Bank and Financial Services Authority of Ireland Act 2004 in December 2010. The FSPO said that the FSOB-�s HR records show that the Deputy-�s period in office finished during December 2012.

The FSPO said its understanding from the FSOB-�s records is that the Financial Services Ombudsman Council had previously engaged the PAS to facilitate such appointments. It said that in the FSOB-�s 2005 Annual Report, the then Financial Services Ombudsman Council Chairperson confirmed that the Council had engaged PAS to conduct a competition for the post of Financial Services Ombudsman. The FSPO said that in the absence of records pertaining to the recruitment process, and the involvement of PAS in a 2005 competition, it understands that the Council may have engaged PAS to conduct a recruitment competition for the post of Deputy Financial Services Ombudsman in 2010.

The FSPO added that the FSOB and its Council were dissolved in 2017, and records held by the FSOB as well as the Office of the Pensions Ombudsman were transferred to the FSPO once it was established in January 2018. It said that it sought to identify records held by the FSOB that were transferred to the FSPO in relation to the Deputy Ombudsman-�s qualifications, either through his personnel record or FSOB Council record, but it has not been able to locate any such records.

It said that its understanding is that the FSOB would not have been given access to the details of the qualifications of any of the candidates considered by PAS in the course of the competition for the position of the Deputy in 2010. Furthermore, the FSPO said that under its Record Retention Schedule, any qualification records it does hold are retained by the FSPO for all staff for the duration of their employment. It said that where an employee ceases their employment with the FSPO and becomes -�former staff-�, such records are maintained for the year they cease employment plus six years (in other words, up to seven years). It stated that, given that the Deputy who made the decision on the applicant-�s complaint to the FSOB in 2012 has not been employed by either the FSOB or the FSPO in almost 10 years, and given that such records had they been available and maintained in accordance with the FSPO-�s Records Management Policy would no longer be available, it was not deemed necessary to contact the former Deputy Ombudsman regarding the FOI request.

As I have outlined above, the Investigating Officer notified the applicant of the details of the FSPO-�s submissions and invited him to submit any further comments he might have on the matter. In his response, the applicant expressed concerns about the FSPO-�s refusal of his request. He said that the FSPO would have to know the qualifications of each of its staff in order for it to assign complaint files to the relevant employee. He contended that it would not make sense to allow a legally qualified person to investigate a complaint that was, for example, accountancy-based in character. The remainder of his response was concerned with matters that are outside the remit of this Office.

It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist. Rather, the question I must consider in this case is whether the FSPO has, at this stage, taken all reasonable steps to ascertain the whereabouts of the relevant record. I appreciate that the applicant is understandably disappointed that relevant records cannot be found. Nevertheless, having regard to the FSPO-�s explanation of its records management practices, to the details of the searches undertaken, and in the absence of evidence to suggest that other relevant searches should have been undertaken, I am satisfied that the FSPO has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that the FSPO was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for records containing the former Deputy Ombudsman-�s qualifications at the time he heard the applicant-�s FSPO case on the ground that no relevant records exist or can be found.

I consider it appropriate to make one final point. Where a request is received by an FOI body and the records concerned are not held by the body but, to its knowledge, are held by one or more other FOI bodies, the FOI body must cause a copy of the request to be given to the other body within two weeks of receipt of the request and must inform the requester that it has done so (section 12(3) refers). Moreover, under section 11(2), an FOI body must give reasonable assistance to a person who is seeking a record under the Act in relation to the making of an FOI request.

Given the FSPO-�s position relating to the records sought, it seems to me that it should have considered transferring the request to the PAS or, at a minimum, it could have informed the applicant that he may wish to redirect his request to the PAS in light of the possibility that it might hold relevant records.

Nevertheless, and while I make no finding on the matter, I would also note for the applicant-�s benefit that even if the records sought were held by either the FSPO or the PAS, the records would likely be deemed exempt from release under section 37(1) of the Act, which provides for the protection of third party personal information.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the FSPO to refuse access, under section 15(1)(a) of the Act, to records containing the qualifications of the then Deputy Ombudsman when deciding the applicant-�s case with the FSPO in 2011/2012, on the ground that no 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