Decision
Mr A and Department of Social Protection (the Department)
From Office of the Information Commissioner (OIC)
Case number: 130135
Published on
From Office of the Information Commissioner (OIC)
Case number: 130135
Published on
Whether the Department was justified in deciding that no further records exist or can be found relating to the applicant's request for records relating to his Disability Allowance claim from 2 July 2010
On 20 November 2012, the applicant, made an FOI request for all information relevant to his Disability Allowance claim from 2 July 2010. The Department's decision of 08 January 2013 was to release all of the requested records it had located. On 30 January 2013 the applicant sought an internal review of the Department's decision as he contended that further records were being held by Department officials which had not been disclosed. The Department's internal review decision of 11 February 2013 stated that all records had been released to the applicant. On 23 May 2013, the applicant sought a review by this Office of the Department's decision.
On 24 October 2013, Ms Mary Byrne, Investigator, wrote to the applicant outlining her preliminary views on the matter and providing him with an opportunity to make any further comments which he wished to have taken into account before this Office reached a final decision. In his reply dated 13 November 2013, the applicant said that he believed that further records exist and are being withheld by the Department and in particular, by certain named officials. By letter dated 19 November 2013, Ms Byrne sought clarification from the applicant on his contention that further records exist. On 18 December 2013, the applicant outlined why he considered that other relevant records should exist and following further contact with this Office, the Department maintained its position that no further records relevant to this review could be found. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In carrying out this review, I have had regard to the correspondence between the Department and the applicant as set out above, to communications between this Office and the applicant, and to correspondence between the Office and the Department. I have also had regard to the provisions of the FOI Act.
This review is concerned solely with the question of whether or not the Department was justified in its decision to refuse access to further relevant records on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
While no section of the FOI Act has been cited, the Department appears to be relying on section 10(1)(a) of the FOI Act in refusing access to additional records. Section 10(1)(a) provides as follows:
"A head to whom a request under section 7 is made may refuse to grant the request if
(a) 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. 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. The Commissioner's understanding of her 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 atwww.oic.ie).
This Office contacted the Department for clarification on a number of issues relating to this review. In particular, the Department was asked whether the officials named by the applicant held records relevant to this review. The area manager in question detailed searches that were carried out in his office and in the applicant's social welfare local office for further records in relation to this review. The named social welfare inspector has since retired but his office was also contacted regarding further searches for any relevant records. The Department said that, in the light of these further searches, its position remained that the named officials do not hold any records in relation to this matter. In its response of 02 July 2013, the Department said that the applicant was granted access to his entire Disability Allowance file under this and previous FOI requests. The Department went on to say that all relevant records are held on the Disability Allowance file in its section in Longford and accordingly, no original or duplicate records are held by Department officials. If an officer, either in the Disability Allowance section or in a local office, is required to deal with a claim then the file is forwarded to that officer.
By letter dated 18 December 2013 to this Office, in response to Ms Byrne's preliminary view that all relevant records had been released, the applicant provided copies of two certificates of posting for letters dated 15 February 2011 and 27 June 2012 as evidence of the existence of further relevant records. When queried by this Office, the Department explained that the letter dated 15 February 2011 had previously been released to the applicant under a previous FOI request and the Department re-issued a copy of this letter to the applicant. Searches were conducted in the area manager's office, in the applicant's local social welfare office, in the Minister's office, in the Social Welfare Appeals Office, in the Disability Allowance Section and also on the applicant's illness benefit file. No trace of a letter dated 27 June 2012 or any other records relevant to the request could be found following these searches by the Department.
Having considered all the relevant information made available to me, I am satisfied that the Department has taken all reasonable steps to locate all relevant records. I find that the Department was justified in its decision to refuse access to further relevant records on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department in this case.
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