Decision
Mr. A and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-144108-T2N9W0
Published on
British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Irish Information Commissioner's Decisions
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr. A and Department of Social Protection [2024] IEIC 144108 (10 December 2024)
URL: http://www.bailii.org/ie/cases/IEIC/2024/144108.html
Cite as: [2024] IEIC 144108
[New search] [Help]
Whether the Department was justified in refusing access, under section 15(1)(A) of the FOI Act, to further records coming within the scope of the applicant's request for his file at The Social Welfare Inspectors SWI Cork City other than those already released on the ground that no further relevant records exist or can be found
10 December 2024
On 19 September 2023, the applicant submitted the following FOI request to the Department: "Please could I have a full copy of my file at The Social Welfare Inspectors SWI Cork City, from 1/1/2023 up to now, including all about report dated 14/3/2023 and dated 1/9/2023, and including all internal or external communications, and including all documentations." On 21 September 2023 the Department emailed the applicant to inform him that an acknowledgement letter had been sent to him via post on 19 September 2023, and that he could expect a decision on or before 17 October 2023. This response was issued by FOI Longford. On 21 September 2023, the applicant emailed the Department to state that his FOI request for records, made on 19 September 2023, was requested from Social Welfare Inspectors, Cork City, not Longford.
On 26 September 2023, the Department emailed the applicant to inform him that Social Welfare Inspectors Reports form part of a Disability Allowance file, and as such the Disability Allowance section was a coordinator for the FOI request. In emails dated 26 and 27 September, the applicant expressed his confusion regarding the allocation of his FOI request to the Longford Division. He stated that he was requesting a full copy of his file at the Social Welfare Inspectors SWI Cork, not from the Disability Allowance Section Longford. He stated he was concerned that the Disability Allowance file would not contain all records, communications etc. from the Social Welfare Inspectors Office. On 2 October 2023, the Department emailed the applicant asking whether he wished to withdraw his FOI request with Disability Allowance Section, Longford, and wished to redirect his FOI request to Social Welfare Inspectors, Cork City. The Department asked the applicant to confirm yes or no. On the same day the applicant confirmed to the Department that he wished for his FOI request to be redirected to the Social Welfare Inspectors, Cork City, and that he was satisfied to withdraw his request from the Disability Allowance Section, Longford.
On 26 October 2023, the Department issued its decision on the request, stating it was part granting the request, with some redactions made under section 37(1) of the FOI Act, which is concerned with the protection of third party personal information. The decision was issued by the FOI Longford Office. In the decision, the Department explained that the administrative practice and policy of the Department was that all FOI requests pertaining to a particular scheme are dealt with by the FOI Unit with responsibility for that scheme. It explained that Disability Allowance is administered from the Longford SWS Office and thus the responsibility for dealing with requests pertaining to Disability Allowance customers lies with the Longford Office. It confirmed that it had liaised with the Cork Inspectorate Office in relation to the request and that his records from the Cork Inspectorate Office pertaining to his Basic Supplementary Welfare Allowance were also enclosed.
On 31 October 2023, the applicant emailed the Department to enquire why a decision had been issued by the Longford Office, when he wished to receive all his records from the Social Welfare Inspectors Office, Cork City. On 20 November 2023, the Department issued its internal review decision, in which it affirmed its original decision. The Department again explained that the decision was issued by the Longford Office, as the Office with responsibility for the administration of the Disability Allowance scheme. It said it had engaged with the Social Welfare Inspectors SWI Cork City Office, who confirmed that all records relevant to the request had been provided.
On 24 November 2023, the applicant applied to this Office for a review of the Department's decision. He said that he believed that by issuing its decision from the FOI Longford Office, the Department was blocking access to his file at the Social Welfare Inspectors SWI Cork City.
During the course of this review, the Department released a number of additional records to the applicant. The Investigating Officer also provided the applicant with details of the Department's submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to his request exist or can be found. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
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 outlined above and to the submissions made by the Department and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records coming within the scope of the applicant's request other than those already released on the basis that no further relevant records exist or can be found after all reasonable searches have been carried out to locate them.
Before I address the substantive issue in this case, I wish to make a couple of preliminary comments.
Firstly, it is important to note that section 13(4) of the FOI 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 or release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Secondly, it is also important to note that 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.
Finally, during the course of the review the applicant contended that he did not receive the additional records which the Department released to him, on 14 May 2024. Consequently, the Department re-released the records to the applicant on 16 July 2024 via registered post, which he confirmed receipt of with this Office on 24 July 2024. As such, I am satisfied that the applicant has now received all additional records which were released to him by the Department during the course of this review. I note that in further correspondence with this Office, the applicant contended that he did not receive records titled 'FOI 3 and FOI 11, Scope Section', nor, he said, did he receive records provided by Scope Section, PRSI Section, Client Eligibility Services and Records Section, and as such he could not comment on them in his further submissions. Having reviewed the additional records which were released to the applicant, I am satisfied that the records include FOI 3 and FOI 11 from the Scope Section, I am also satisfied that additional records were provided from the four sections mentioned above.
Section 15(1)(a) of the FOI 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 their 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 noted above, the Department provided this Office with details of the searches it undertook in an effort to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
In its submissions to this Office, the Department said it had released records to the applicant relating to his Disability Allowance as part of a previous FOI request he had made, which was dealt with by the FOI Unit in Longford. In relation to the current FOI request, which is the subject of this review, the Department said it liaised directly with the SWI Cork Inspectorate to ascertain whether it held any records within the scope of the request. The FOI Unit Longford said it asked the relevant member of staff in the SWI Cork Inspectorate Office to complete a full check of its systems/records pertaining to the applicant, and to confirm that all records- from any source- had been uploaded to the applicant's record on the relevant IT system. The FOI Unit Longford also said it asked the staff member to indicate whether any other staff within the Cork Inspectorate were involved with the applicant, and if so asked that the request for searches to be conducted was forwarded to any relevant staff identified. The Department stated the relevant staff member in SWI Cork Inspectorate Office confirmed that all records relating to the applicant and the review of his Disability Allowance claim had been scanned and uploaded to the system. It said the Community Welfare Section also confirmed that all relevant records had been released, and that no additional information or records were held relating to the applicant's request.
In relation to its records management, the Department stated that Cork Social Welfare Inspectorate commenced Scanning in 2015. It said that under RSU Circular 38/15, documents can be destroyed 1 day (24 hours) post scanning. The Department stated that the Cork Office does not hold paper files. It said that once the SWI report is completed and all documents are scanned to the customer/claim on the system, any hard copies are shredded and disposed of in confidential waste. The Department said the Disability Allowance section then has full access on the system to any information uploaded by the SWI to process a customer's claim, and if necessary, complete a means assessment.
The Department said the Regional Management Team confirmed with the Community Welfare Section (CWS) in Cork that all information/documentation pertaining to the applicant's claim had been uploaded to the claim and provided for under his FOI request for records. The Department stated that CWS confirmed that it held no further documents/ information in relation to the applicant.
The FOI Unit Longford also stated that a number of individuals were contacted and asked to carry out searches for records relevant to the applicant's request, a list of which was provided to the applicant by the Investigating Officer during the course of this review. The Department stated that all individuals contacted confirmed they held no further records relating to the applicants Disability Allowance claim. The Department stated that a senior staff member in the Cork Inspectorate Office said that all SWI reports and any related documents are scanned to the system in order to allow the Disability Allowance section to access them. The staff member stated to the Department that no paper files are held by the Inspectorate in Cork, owing to the fact that once an SWI report is completed and all documents are scanned to the customer/claim, any hard copies are shredded and disposed of via confidential waste.
Finally, the Department stated that the administrative practice and policy of the Department is that FOI requests pertaining to certain schemes are dealt with by the FOI Unit with responsibility for the Scheme. It said that as the applicant's request was for records pertaining to his Disability Allowance (DA) claim, he was advised that Disability Allowance is administered from the Longford SWS Office and thus the responsibility for dealing with requests for records pertaining to DA, lies with the Longford Office. The Department stated that from time-to-time investigations are referred to Social Welfare Investigators (SWI), local to the residence of the customer, in this case the Cork City Inspector Office. It said the administrative practice is that the SWI completes his/her report, scans the outcome of the investigation to the BOMi and subsequently destroys the documents after 24 hours. The Department stated that having reviewed the searches carried out by all relevant individuals and Offices contacted, it was satisfied that no further records existed relating to the applicant's DA claim.
In light of the submissions provided above, the Investigating Officer provided the applicant with an update letter summarising the search details provided by the Department, and invited the applicant to make submissions in response, which he duly did. In his submissions to this Office, the applicant stated he believed a named staff member in the Inspectorate Office was withholding information relevant to his request in order to cover up her "false data". The applicant stated that he believed the Department was creating false excuses to hide documents relevant to his request, which he believed was a crime under the Criminal Justice (Perjury and Related Offenses) Act 2021.
The applicant stated he believed the Department were: "creating excuse to hide documents, as I explain above, the excuse is that documents received from "Cork Social Welfare Inspectorate" for purpose of means assessment, so if there are hidden documents was discovered, the excuse is "not important for purpose of means assessment" in their opinion, BUT it could be very important for myself because it is against the Department. Fabricating evidence is an illegal and unfair act. [sic]"
The applicant also stated that he considered it strange that the decision issued to him by the FOI Unit Longford granted access to SWI documents via the Disability Allowance Section but refused access to the source of the documents i.e. the Social Welfare Inspectors SWI Cork City. He stated he believed this was because the Department were trying to create a false reason to refuse access to the records he was requesting. As well as this, the applicant stated that he believed further records should exist beyond those which were released to him. The applicant provided four examples of instances which he believed further records should exist- and pointed out that the Cork Inspectorate Office did not solely have the power to carry out means assessments, but also had responsibility for PRSI and Scope Sections, for example. He explained that this was not an exhaustive list of examples, but that he believed these examples showcased that further records existed which had not been received by the FOI Officer of the Disability Allowance Section in Longford, and therefore not released to him.
Finally, the applicant reiterated that his request was for access to all his files at the Cork Social Welfare Inspectorate, and that he did not wish for his request to be filtered by 'means assessment', 'Disability Allowance Section', or by a named staff member. He stated that the submissions from the Department had been prepared by the FOI Officer for Disability Allowance in Longford, and in his opinion this was the incorrect FOI Officer to deal with his request. Instead, he stated that the FOI Officer in the Cork Social Welfare Inspectorate should have been tasked with processing his FOI request, in order to ensure that he received all his files at the Cork Social Welfare Inspectorate. He stated that he believed the FOI Officer for Disability Allowance did not "have any experience about the internal rules of the "Cork Social Welfare Inspectorate", including how to dealing with the Social Welfare Inspectors, and where the hard copy of the documents stored and how to access it and when and how the electronic stored [sic]."
In consideration of the applicant's submissions, the Investigating Officer reverted to the Department, asking it for a response to the points he had raised. In response, the Department firstly sought to clarify that whilst the applicant's request was being processed by the FOI Longford Unit- as it originally believed the applicant's request was for records solely related to his Disability Allowance application-, this did not mean that all his files at the Cork Social Welfare Inspectorate were being withheld. Instead, the Department stated that the FOI Unit in Longford were coordinating the searches, and this meant that the FOI Officer in Longford reached out to a number of FOI Officers and staff in different scheme areas and offices, and requested searches to be undertaken and any relevant records found to be returned. The Department stated that "if a customer seeks records pertaining to another scheme or Section within the Department, our unit would co-ordinate the collective response." As such, in this case the Department stated that it had liaised directly with the Cork Social Welfare Inspectorate Office on a number of occasions, and had requested that the Cork Office provide all records related to the applicant to the FOI Unit Longford, in order for it to process the applicant's request in full. Therefore, the Department's position is that whilst the records were released via the FOI Unit in Longford in this case, that all records relating to the applicant- not solely in relation to Disability Allowance- have now been released to him in full, many of which it said were released in the final batch of records located during the course of this review.
In relation to the applicant's assertion that further records existed beyond those which had been released to him at original decision stage, the Department stated that it had become clear, after reviewing the comments made by the applicant to this Office in response to the update letter provided, that the scope of his request was broader than the Department initially thought. The Department stated that originally, as the applicant had referred to a Social Welfare Inspectors report pertaining to his Disability Allowance claim, it believed that the records he was seeking were limited to those relating to his Disability Allowance. However, as the applicant had referred to Scope and PRSI sections in his submissions to this Office, the Department stated it became clear the scope was broader than initially thought. Therefore, in light of this, the Department stated it liaised with the following sections to ensure searches were carried out for all records relating to the applicant: Client Eligibility Services, Scope, Records, and PRSI sections. The Department stated it consulted with the Freedom of Information Officers in the areas mentioned above and following searches conducted in these areas by relevant staff members, a number of additional records were released to the applicant, as well as some additional records from the Disability Allowance section.
As mentioned above, in his response to the update letter provided the applicant provided a series of examples which he stated were proof that more records existed beyond those which had been released to him. He stated that the list of examples provided was not exhaustive, and only served to prove that further records should exist. The Department responded to each of the examples raised by the applicant, and provided the title of the corresponding record which had been released to the applicant. It stated that having released the additional records to the applicant during the course of the review, its position was that no further records existed.
The Department provided a list of eighteen staff members who conducted searches for records relevant to the applicant's request across the following sections: Disability Allowance (to include SWI Cork Office), Scope, PRSI Refunds, Records, Client Eligibility Services, and Community Welfare Services. The Department stated that staff members in the Disability Allowance Section confirmed that all records relating to the applicant were uploaded to the relevant system. It said that staff members in the Social Welfare Inspectorate Cork Office also confirmed that they had conducted a search of their desks, drawers, and presses in their Office, and stated no records were located. The Department stated that the Disability Allowance Section in Longford also conducted additional searches, and that the section confirmed that searches took place and all records were scanned to the system.
The Department stated that the Scope Section staff confirmed that all records were uploaded to the system and that all records relating to the applicant were released in full. It said that staff in the PRSI Section also conducted searches and confirmed all records were uploaded to the system, including all correspondence and emails. The Department stated that six staff members in the Records Section confirmed that no further interactions with the applicant existed and no further records existed, beyond those which were released to the applicant in full. It also stated that Client Eligibility Services confirmed that their section was searched for any contact with the applicant, and other than the papers released, no further papers or emails exist. Finally, the Department stated that the Community Welfare Services Section confirmed that its only communication with the applicant was made in writing using official Department letters, all of which were scanned/uploaded to his claim.
The Department stated that in light of the above, it was satisfied that all records had been released to the applicant, and that no further records existed.
In response to further records being released, the applicant stated that he believed that his records had been filtered by a named staff member in the SWI Cork Office, which he stated meant he had not received all his records. As outlined above, the Department provided a list of eighteen named staff members who conducted searches for records relating to the applicant's request, and confirmed that several staff members returned records which were subsequently released to the applicant. As well as this, the Department also confirmed in submissions to this Office that the named staff member in the SWI Cork Office was not the only member of staff to conduct searches in the Office, and stated that a more senior member of staff had also conducted searches for records relating to the applicant's request. It is important to note, as explained to the applicant, this Office has no remit to investigate complaints, and as such this Office has no power to instruct a public body to disallow certain staff members from conducting searches simply because the applicant has concerns about that staff members alleged conduct- a matter which this Office has no involvement in and can make no determination on.
The applicant also raised concern with the fact the Department had previously stated in its submissions to this Office that no further records existed, and subsequently released a number of further records to the applicant during the course of the review. I acknowledge this is an understandable concern to have, and in some circumstances where a public body has discovered a large number of additional records during the course of a review this could suggest that adequate searches were not carried out originally. However, in this case, based on the submissions which have been provided to this Office, I am satisfied that the Department have adequately explained that the reason a number of additional records were found during the course of this review was because it had misinterpreted the scope of the applicant's original request. As outlined above, the Department stated that it initially believed the applicant was solely requesting records relating to his Disability Allowance file, as the report and dates mentioned in his original request referred to his Disability Allowance claim. However, as the applicant mentioned a number of additional sections within the Department during correspondence with this Office, the Department stated it became clear that his request was broader than initially thought- and as such a number of additional searches were carried out, which led to records being found and subsequently released to the applicant. It is important to note that in this case, a majority of the additional records released during the course of this review were found at the first instance of searches being carried out, and it appears to me that the reason the Department claimed no further records existed at an earlier stage in the review was due to a misunderstanding of the scope of the applicant's request leading to several sections not being searched as they were thought to be outside the scope of the request, as opposed to a failure to conduct adequate searches in these sections. Therefore, while it is regrettable that the Department did not correctly interpret the scope of the applicant's request initially, and while I acknowledge that this confusion led to undue stress and frustration for the applicant, I am satisfied that the adequacy of the searches conducted by the Department were sufficient once the correct scope of the request was identified.
In his submissions to this Office, the applicant also raised issue with the manner in which the records were released to him, and stated that he requested a fair mechanism from the Department to have proof that the records he received from the FOI Officer are the true records which are held by the Department. The applicant stated that he requested to receive the records by email or any other mechanism which would prove the records were true copies, but he said the Department refused this request. The applicant provided a copy of an email chain between him and the Department, concerning copies of a Means Reporting Form which had been released to him by the Department. In the copies of correspondence, the applicant stated that he was seeking evidence to confirm that what the Department sent to him was what he received. During this exchange, a Department staff member confirmed to the applicant that she could confirm the documents the applicant had received in the envelope were from her. The applicant stated in the interests of security, he would like to request the record in PDF format to prove it was the same record held by the Department. In submissions to this Office, the Department stated that a notary had been engaged in relation to this record to confirm its validity, per the request of the applicant.
As the applicant had stated to this Office that he requested all records to be released via email, the Investigating Officer reached out to the Department to clarify. The Department stated that apart from the email chain mentioned above, it held no record of any request from the applicant for his records to be sent via email as opposed to post. The Department stated that it is standard practice for records of the type in this case to be released via post, as opposed to electronically. It stated that only in exceptional circumstances, such as where there is a mobility issue that would inhibit an applicant from being able to review paper records, that records are arranged to be released electronically. The Department stated that the applicant in this case did not stipulate a preference for the manner in which the records would be released at either the original or internal review request stage, nor at any stage during his interactions with the Department- barring the specific instance outlined above in relation to the Means Reporting Form. The Department stated that it considers hard copy release via post to be the most secure form of release, owing to the oftentimes sensitive and confidential nature of the records at issue. It said that if records are released electronically, for the reasons outlined above, the Department includes a disclaimer statement which highlights that it cannot guarantee that this form of release is absolutely secure, due to the threat of cyber threats etc. The Department stated its position was that the records released via post were unaltered, direct copies of the records held by the Department. Owing to the explanation provided above by the Department, and in light of the fact that the applicant did not specify the manner in which he wished to receive the records in either his original or internal review request, I am satisfied that the Department was justified in releasing the records to him via post, as it has stated is standard practice in the absence of an explicit request otherwise.
Finally, I acknowledge that the applicant has stated that he wishes for it to be noted that he believes all the responses provided by the Department in relation to this case were not based on any evidence, or were based on fabricated evidence, and as such it cannot be legally accepted. Based on the submissions the applicant has provided to this Office, it is clear he has expressed deep concern regarding what he perceives as dishonesty on the part of the Department. I understand that the applicant has informed this Office that there is an ongoing complaint which he is pursuing on foot of these concerns, and that he believes many of the officers within the Department are conspiring to withhold records from him. As has been stated 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. The applicant has pointed to the fact that the Social Welfare Appeals Office overturned a decision taken by the Department to cease his Disability Allowance on foot of a means review carried out in 2023, as proof that the Department are dishonest and that some officers within the Department are- in his opinion- attempting to cover up their "dirty jobs." It is worth noting that this Office has no involvement in any such complaints process, and that unless the Department deems a staff member incapable of carrying out their duties, this Office will take at face value the submissions and statements provided from any Department staff members, just as the submissions provided from an applicant will be taken at face value to be true and made in good faith.
It is important to note that it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist, or as in this case the applicant asserts that records are being withheld. Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Department has adequately explained why no further records exist in relation to the applicant's request. In the circumstances, I find that the Department was justified in refusing access to further records relating to the applicant's request, under section 15(1)(a) of the FOI Act, as no further records exist or can be found after all reasonable searches have been carried out to locate them.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to refuse access to further records sought by the applicant under section 15(1)(a) of the FOI Act, on the basis that no further records exist or can be found after all reasonable steps have been taken to locate them.
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