Decision
Mr D and the Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: 140073
Published on
From Office of the Information Commissioner (OIC)
Case number: 140073
Published on
Whether the Department was justified in its decision that the records sought by the applicant relating to average Class S PRSI contributions approved for State Pension Transition do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts under the provisions of section 10(1)(a) of the FOI Act
8 July 2014
The applicant submitted an FOI request to the Department on 29 October 2013 requesting records showing the following information:
1. Documents setting out the amounts of Class S PRSI paid by the applicant for all of the years 1986 to 2010 inclusive;
2. Documents setting out the average (or if the average is not available, the median) amount of PRSI, whether S Class or otherwise, contributed by the recipients of Transitional Pension at age 65 who have become entitled to that pension in the current year 2013; or,
3. If that information is unavailable the average or median amount of PRSI whether S Class or otherwise, contributed by the recipients of Transitional Pension at age 65 who have become entitled to that pension in the year 2012, or in latest year for which such information is available if not available for 2012;
4. A copy of the Department’s instructions relating to the eligibility or otherwise, of a Class S PRSI contributor to the Transitional Pension;
5. A statement of the legislative basis for such instructions;
6. A statement as to whether the Transitional Pension has been granted to any person on the basis of Class S PRSI contributions, and, if so, the circumstances in which such Pension was granted.
The Department issued its decision in response to this request on 3 December 2013. However, it neglected to respond to the request for data regarding payments of Class S PRSI made by those who did qualify for a transitional pension; accordingly, the applicant sought an Internal Review of this decision on 5 December 2013.
In its Internal Review decision the Department stated that it was not possible to compute the data sought into a single averaged value of insurance contributions, by class, across the number of State Pension Transition recipients who have been awarded that pension, either in 2013, 2012, or a preceding year.
The applicant was not satisfied with this response and applied to this Office for a review of the Council's decision on 28 March 2014. The applicant considered that as the Department was the repository of all the data in question it was disingenuous to state that the Department did not hold this data.
During the course of this review, the Department stated that it did not hold any further records relating to the applicant's request, and outlined that it was not possible to retrieve the information requested. Mr. Christopher Campbell of this Office wrote to the applicant on 23 June 2014 outlining the searches conducted by the Department, the reasons given by the Department as to why the information requested could not be retrieved, outlining his view that section 10(1)(a) of the Act would apply on the basis that the Department did not hold any further records relating to the request, and inviting the applicant to submit any further views or information that he might have in relation to his request on this basis. No further response from the applicant was received and, as the consultation period set has now passed, and having considered the submissions of the Department and all available information, it is my view that this review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to: the decisions of the Department on this request and its communications with this Office; the communications of the applicant with this Department and this Office; the provisions of the FOI Act.
The position of the Department is that it does not hold the records the applicant is seeking. Therefore this review is concerned with the question of whether the Council is justified in refusing access to the information requested on the grounds of section 10(1)(a) of the FOI Act on the basis that the requested records do not exist or cannot be found after all reasonable searches have been conducted.
I should explain at the outset that the FOI Act confers a general right of access to records held by public bodies. If the information sought is not contained in a record held by the public body, the FOI Act cannot oblige public bodies to create records to satisfy or respond to the request.
Section 10(1)(a) of the FOI Act states:
A head to whom a request under section 7 is made may refuse to grant the request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken
The Commissioner's role in cases such as this is to review the decision of the public 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 public body in looking for relevant records. 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 were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).
In this particular case the Department has stated that their IS system does not allow them to extract the information as sought by the applicant. The Department state that the case category referred to in Mr Young’s data request represents a very limited sub-category of State Pension Transition(SPT) (mixed-insurance) pension awards, that is ‘mixed-insurance pro-rata SPT where self-employment contributions have been used in the totalisation/yearly averaging aspect of the assessment’. This assessment is provided for in Statutory Instrument No 142 of 2007, Article 73 (factor ‘C (ii) in the pro-rata formula).
In light of the applicant’s application and search questions from this Office, the Department considered other means by which they might be able in some way to address the applicant’s request for information. The Department outlined two scenarios of awarded SPT cases where S-class PRSI contributions were reckonable, as well as outlining in more detail the rules on persons awarded SPT where S-class contributions were deemed reckonable. This information was forwarded to the applicant on 16 June 2014.
The Department has stated that computer system for the processing of its State pension transition/contributory applications does not by design cater for electronic interrogation to identify such specific cases. It states that, irrespective of the reporting period sought (2013, 2012 or any previous period) a data report for this specific customer group cannot be obtained from the Department’s pensions processing system.
The Department’s position is that, in order to provide the two sample cases that were released to the applicant it was only possible to identify the two cases used as examples by the extracting of a four week sample from the broader ‘SPT mixed-insurance’ category pension awards, and manually screen-checking each case in that listing for evidence of ‘S-contributions’ in the insurance record used. Having considered the Department’s statements on the matter, I find it reasonable to accept its contention that it is not feasible to conduct this manual exercise across the full category of ‘mixed-insurance’ State Pension Transition pension award cases for a year. As noted above, the Act does not require the creation of a record in response to a request where no record exists.
The position of the Department is that the records requested by the applicant do not exist. Taking into consideration the department’s explanation and subsequent efforts to provide some relevant information to the applicant, I find that the Council is justified in refusing access to the records sought on the basis of section 10(1)(a) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator