Decision
Mr G and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: 130332
Published on
From Office of the Information Commissioner (OIC)
Case number: 130332
Published on
Whether the Department was justified in its decision to refuse a request for access to records concerning the applicant’s medical card application on the basis that section 10(1)(a) of the FOI Act applies.
8 May 2014
The applicant’s original request under the FOI Act was for access to records held by the Department in relation to his application for a medical card and his application for Supplementary Welfare Allowance. By letter dated 5 November 2013, the Department granted the applicant’s request in full and provided the applicant with copies of the records in relation to his application for Supplementary Welfare Allowance. On 7 November 2013 applicant wrote to the Department claiming that certain records were missing from his file in particular his application form for a medical card.
The Department by letter dated 12 November 2013 notified the applicant that it did not have a copy of his medical card application. The Department informed the applicant that the Health Service Executive (“HSE”) would have such records and that any application for records held by the HSE must be made to HSE directly as the Department is a separate organisation.
The applicant then applied to this Office on 20 December 2013, for a review of the Department’s decision.
During the course of this review the Department informed this Office that no other records are held in the Department in relation to the applicant’s Supplementary Welfare Allowance claims. The Department stated that there is an Appeals file held in the Social Welfare Appeals Office, (“SWAO”) D’Olier Street, Dublin 2. It is open to the applicant to request information concerning his Supplementary Welfare Allowance appeal from the SWAO. However, this matter is outside the scope of the current review before this Office.
I note that Ms. Joanne Lynch of this Office wrote to the applicant on 10 April 2014 outlining her preliminary views that the Department was justified in refusing access to the information sought on the basis that is does not hold those records. The applicant has contacted Ms. Lynch by telephone and has made a further submission to this Office. Ms. Lynch explained that she accepted the Department's contention that it does not have his medical card application records. Ms. Lynch again explained that it is open to the applicant to request these records from the HSE. As the appliocant does not accept the position as outlined to him by Ms. Lynch, I now consider it appropriate to conclude this review at this by way of a formal binding decision.
In concluding my review I have taken account of:
• the correspondence which passed between the applicant and the Department in relation to his FOI request;
• the Department's conclusions on the matter;
• the applicant's submissions to this Office,
• the Department's submission to this Office,
• the provisions of the FOI Act.
The applicant has raised issues about changes in how the Social Welfare Allowance and medical card schemes are administered in his local area and about personnel moving from the HSE to the Department who dealt with his applications. In her preliminary view, Ms. Lynch explained the background to these changes. However, it is outside the scope of the review of the Information Commissioner to adjudicate on how public bodies perform their functions generally.
There is only one issue in this review - whether or not the Department was justified, within the terms of the FOI Act, in refusing access to the records sought by the applicant on the grounds it does not have those records.
Section 10(1)(a) of the FOI Act provides as follows:
(1) 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 concerned and to decide whether that decision was justified. This means that the Commissioner 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 such as this consists of the steps actually taken to search for the records, where relevant, along with miscellaneous other evidence about the record management practices of the public body on the basis of which the original decision concluded that the steps taken to search for the records were reasonable. The Commissioner has no role in assessing whether records ought to have been created or retained.
In this case, Ms. Lynch informed the applicant that she accepted the Department's contention that it did not hold the relevant records as any such records, should they exist, would be held by either the HSE of the SWAO. I agree with Ms. Lynch's view in the matter, and accordingly, I am satisfied that the Department has outlined clearly to the applicant where the records he is seeking are located and explained to him that it is open to him to submit a separate FOI requests to obtain the relevant records from the HSE. As noted above, it is open to the applicant to request information concerning his Supplementary Welfare Allowance appeal from the SWAO. I consider that the Department is justified in concluding that the records which are the subject of the applicant’s request are not in their possession. Accordingly, I find that the decision of the Department was correctly made in accordance with Section 10 (1)(a) of the FOI Act.
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 of this decision.
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Sean Garvey
Senior Investigator