Decision
Mr X and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-146638-V3W8F5
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URL: http://www.bailii.org/ie/cases/IEIC/2024/146638.html
Cite as: [2024] IEIC 146638
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Whether the Department was justified in refusing access to further records relating to the applicant's Disability Allowance (DA) claim
4 November 2024
On 15 November 2023, the applicant made an FOI request for records on his DA file, which had been created since his FOI request for such records (which I understand the Department received on 30 August 2023).
The Department's decision of 11 December 2023 part-granted the request. It fully released the majority of the records it had identified as covered by the request. It fully and partially refused a small number of records under section 37 of the FOI Act (third party personal information).
The applicant sought an internal review on 15 January 2024. He also described further records which he said the Department should hold.
The Department's internal review decision of 2 February 2024 granted partial access to a further record that it had located. It said that it had carried out reasonable searches for records covered by the request (section 15(1)(a) of the FOI Act). It affirmed its reliance on section 37(1) in relation to the various withheld details.
On 21 February 2024, the applicant applied to this Office for a review of the Department's decision.
During the review, the Department released the details that it had withheld under section 37 except for excerpts of two records. It also found and released one of the records that the applicant had said was missing (a declaration), and provided him with a clearer copy of a previously released record. I am also pleased to note that, further to its searches in this case, the Department located and released additional records relevant to the applicant's entirely separate FOI request for his Rent Supplement records.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges. I have also taken account of correspondence between this Office, the Department and the applicant, particularly my letters to the applicant of 20 August and 15 October 2024, to which I have received no reply. I have also had regard to the contents of various records covered by the request, and the provisions of the FOI Act.
My letters to the applicant of 20 August and 15 October 2024 explained that I have no powers under the FOI Act to examine many of the issues he raises. I explained that my review would be confined to examining whether the Department was justified (i) in relying on section 15(1)(a) of the FOI Act regarding the further records that the applicant says it should hold, and (ii) in withholding parts B to E of record FOI 30, and part A of record FOI 49, under section 37 of the FOI Act.
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Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
A review of an FOI body's refusal of records under section 15(1)(a) assesses whether it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. 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. It is not normally the function of this Office to search for records.
The applicant says that the Department should hold additional records, as follows:
● Notes of an interview dated 24 June 2016
Record FOI 18 is a report of a Social Welfare Inspector (SWI) interview dated 24 June 2016. The applicant says that he has not been provided with the SWI's notes of the interview or a declaration referred to in the report. As noted earlier, the Department has now found and released the declaration.
● Further notes and a report of an SWI interview of 19 September 2023, and documents that the applicant says he provided to the SWI on that date
The Department says that record FOI 49 comprises the SWI's notes of the 19 September 2023 interview. I note that record FOI 49 is a two-page record. The first page is a memo to the Department's FOI office (signed by the SWI in January 2024) attaching what the SWI says are his notes of the interview of 19 September 2023. The second page consists of a printed direction to the SWI to establish particular matters, and some brief hand-written notes. However, because "08/09/2023" is printed at the bottom right hand corner of this page, the applicant says that the notes cannot concern the interview of 19 September 2023.
Record FOI 28 is an SWI report dated 18 October 2023, which refers to "the visit today." The applicant says that this report cannot concern the 19 September 2023 interview.
The applicant says that he gave the SWI various documents during the 19 September 2023 interview, i.e. the long version of his birth certificate, his passport and PPS card, and his spouse's passport). He says that these are not reflected in the records released to him.
The Department's position is that it has taken all reasonable steps to locate records coming within the scope of the applicant's request, including those listed above. My letter to the applicant of 15 October 2024 details the searches that the Department says it carried out in this case, and its explanations regarding the specific records he says are missing. I also said that I was taking account of searches that the Department said it carried out in a closely related review (OIC-147875-B5N6X6, which also concerns the applicant's requests for his DA records). I summarise the relevant details below.
General searches
The Department says that the applicant's DA file is held electronically. It says that it searched this system, the three shared DA section mailboxes, and the personal email inboxes of the seven staff in the DA Support section. It says that the SWI who dealt with the applicant in 2016 and September 2023 says that all relevant records would have been scanned to the electronic system. It says that staff of the Social Welfare Inspectorate searched their areas, emails, and electronic systems. It says that it used the applicant's name and PPS number in its searches. It says also that it searched for records held by the medical review and assessment team.
The Department says also that it searched Rent Supplement files held by the Community Welfare Services team, which resulted in the declaration being found. I note here the Department's position that the SWI interview of 24 June 2016 concerned Rent Supplement rather than DA. I also note from record FOI 18 that the interview discussed rent matters and that the declaration was concerned with such issues rather than with DA.
Finally, the Department says that in the related review it searched the shared mailboxes in the Longford contact centre and also the mailbox of a staff member therein.
Notes of SWI interview of 24 June 2016 and declaration
The Department says that while SWIs may take notes during interviews, they do not retain the notes once they have submitted a report on the matter to a Deciding Officer (DO). It says that the relevant SWI has confirmed that he did not retain any notes of the 24 June 2016 interview. As noted earlier, the Department found and released the declaration during this review.
Further notes and a report of SWI interview of 19 September 2023
The Department says that when a DO determines that a claim warrants investigation, they send various details electronically to the SWI. It says that an investigation into the applicant's claim commenced on 8 September 2023, and that this was when the SWI printed off the DO's investigation query as part of the usual pre-interview preparations. It says that this is why "08/09/2023" is contained in record 49.
The Department maintains that record 49 comprises the SWI's handwritten notes of the interview of 19 September 2023. It says that the SWI interviewed the applicant on this date, as evidenced by record FOI 34. I note that record FOI 34 is a Means Reporting Form (MRF), which is dated 19 September 2023 and signed by the applicant and the SWI. The Department says also that an SWI may have further enquiries to make following a customer interview, and submits a report to the DO when these have been finalised. Its position is that record FOI 28, dated 18 October 2023, is the SWI's report to the DO in relation to the entire SWI investigation. It says that the reference in that record to "the visit today" is an error.
Documentation that the applicant says he gave to the SWI on 19 September 2023
The Department says that any original documents provided to an SWI in the course of an investigation are posted back to the customer once they have been scanned onto the electronic system. It says that any copy documents provided are scanned onto the system and then destroyed.
The Department says that it authenticates identities through the SAFE (Standard Authentication Framework Environment) process. It says that this process requires the provision of documents such as passport, birth cert, driving licence, travel documents etc., and ultimately results in the issuing of a Public Services Card (PSC). It says that the applicant is designated as SAFE 2. It says that it is not usual practice to ask SAFE 2-designated customers to again provide ID documents. It refers also to its internal procedures, which say that "where a customer holds a PSC there is no requirement to scan I.D. documents, e.g. passport, driver's licence, birth certificate as they have already been captured".
The Department says that the SWI recalls the applicant giving him copy documents in the interview of 19 September 2023. It refers also to the released copies of the applicant's marriage certificate, his wife's PSC and a HAP checklist. I also note that record FOI 34 (which, as described earlier, is dated 19 September 2023 and is signed by the applicant and the SWI) says that ID was confirmed at the time of the interview via PSC. Part of this form also indicates that birth certs were not provided.
In addition, the Department describes the searches of various locations, including the SWI's office, which it says it carried out on different occasions for the documentation concerned.
Analysis
As already noted, my letter to the applicant of 15 October 2024 details the above descriptions and explanations. I have not received any response.
In all of the circumstances, it seems to me that the Department has given reasonable explanations as to why it does not hold the various records that the applicant contends are missing from his file. I will also say that the SWI's retention of the 19 September 2023 interview notes does not give me any reason to dispute his position that the 24 June 2016 notes were not retained.
In any event, the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the FOI body concerned takes all reasonable steps to locate relevant records. 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. Having regard to Department's submissions, and in the absence of any evidence to the contrary, I am satisfied that the Department has taken all reasonable steps to locate records covered by the applicant's request, including the further records that he says should be held. I find that section 15(1)(a) of the FOI Act applies.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. A record that is exempt under section 37(1) may be released further to sections 37(2) (exceptions) or 37(5)(a) (public interest) in particular.
Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (ii) information relating to the financial affairs of the individual and (xiii) information relating to the property of the individual.
Section 37(1)
Having regard to the released parts of records FOI 30 and 49, it is not breaching section 25(3) to say that parts B to E of record FOI 30 relate to the applicant's landlord, and that part A of record FOI 49 identifies an individual who gave financial assistance to another person. I am satisfied that these details are covered by the above categories of what must be considered as personal information. I find that they are exempt under section 37(1) of the FOI Act.
Given that the details are contained on records on the applicant's file, they could be seen as also comprising personal information relating to him. However, if this is the case, I am satisfied that the applicant's personal information would be inextricably linked to that of the identifiable third parties (joint personal information). Therefore, section 37(7) would be relevant. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply in certain specified circumstances. In particular, section 37(2)(a) provides for the grant of access to personal information relating to the requester. As explained above, it could be argued that the details at issue comprise the joint personal information of the applicant and the identifiable third parties. However, I am satisfied that if this is the case, section 37(2)(a) would not apply in light of the provisions of section 37(7). I am satisfied that the remaining circumstances set out in section 37(2) of the FOI Act do not arise.
Section 37(5)(a) - the public interest
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I am satisfied that section 37(5)(b) does not apply.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57. In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
The parties' arguments
The Department refers to the general principles of openness and transparency in relation to records held by FOI bodies. However, it maintains that these are outweighed by the public interest in protecting third party privacy rights.
The applicant makes no arguments specifically in relation to the public interest. However, much of his correspondence with this Office concerns his dissatisfaction with the Department's handling of his DA claim and other matters. I should say that I do not believe it appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on such a basis. Neither do I have any remit to consider, or make findings on, the Department's performance of its functions.
That said, I accept that there is a public interest in revealing information concerning the Department's performance of its functions in relation to the applicant's DA claim. However, it seems to me that the Department has served this public interest to a considerable degree by releasing the vast majority of the records at issue. Furthermore, I am satisfied that disclosure of the third party personal information would provide little or no further insight into the Department's performance of its functions. In my view, there is little, if any, weight to the public interest in disclosure of the relevant details.
On the other hand, I accept that the details comprise sensitive personal information relating to identifiable third parties. In considering the weight of the public interest in withholding such information, it is relevant that its disclosure must be regarded as being effectively, or at least potentially, to the world at large. I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of the identifiable third parties.
In all of the circumstances, I do not accept that the public interest in releasing the details at issue outweighs, on balance, the privacy rights of the third parties to which they relate. I find, therefore, that section 37(5)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision on the basis that sections 15(1)(a) and 37(1) of the FOI Act apply.
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.
Anne Lyons
Investigator