Decision
Mr Y and Social Welfare Appeals Office
From Office of the Information Commissioner (OIC)
Case number: OIC-163550-K3Q0N4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-163550-K3Q0N4
Published on
Whether the SWAO was justified in refusing access to additional records relating to the applicant pursuant to section 15(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found.
10 February 2026
In a request dated 30 July 2025, the applicant sought access to“all records held by the Department of Social Protection, including but not limited to the Family Income Supplement/Working Family payment divisions of the department in relation to [himself]… between January 2020 and July 2025” . In a decision dated 26 August 2025, the SWAO granted the applicant’s request and provided copies of records it held relating to the applicant and an accompanying schedule.
On 9 October 2025, the applicant requested a review of the SWAO’s decision. In his request for a review, the applicant did not initially set out a reason for seeking the internal review. Following further correspondence with the SWAO, he stated that the reason he was requesting the review was because he was“not happy with the decision” . No further correspondence appears to have been exchanged between the applicant and the SWAO in relation to his request until 13 October 2025, when the SWAO affirmed its decision to grant access to the records sought.
On 14 October 2025, the applicant applied to this Office for a review of the SWAO’s decision. Following correspondence with this Office, the applicant confirmed that he was“unhappy” with the SWAO’s decision as he had only been provided with records for 2024 and 2025, whereas the scope of his request was for records from January 2020 to July 2025. The applicant therefore believed that the records provided by the SWAO were incomplete.
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 applicant’s comments in his application for review and to the submissions made by the SWAO in support of its decision. I have also examined the records at issue and have had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
It is apparent from the submissions of the SWAO that its position is that it holds no further relevant records apart from those already released. This is, in essence, a refusal to grant access to additional relevant records pursuant to section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, the scope of this review is concerned solely with whether the SWAO was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant’s request.
Before I engage in a review of the steps taken by the SWAO to ascertain the whereabouts of the records sought by the applicant, I wish to note at this juncture that the applicant’s request specifically states that he sought access to his personal records“held by the Department of Social Protection” . The SWAO is an FOI body that is separate and distinct from the Department of Social Protection. It ought to have been apparent to the SWAO - in light of the wording of the applicant’s request - that it should have furnished a copy of his request to the Department pursuant to section 12(3) of the FOI Act where it was likely that it did not possess all of the records sought by the applicant. Furthermore, it is also unsatisfactory that the SWAO – based on the material provided to this Office - does not appear to have communicated with the applicant to either clarify the scope of his request, or provide reasonable assistance to him in line with its obligations under section 11(2) of the FOI Act in the event it suspected his request to be either misconceived or misdirected to it. Such assistance may have enabled to the applicant to better understand the range of personal records actually held by the SWAO. It is likely that if either of the foregoing provisions of the Act been availed of by the SWAO, the circumstances resulting in the applicant’s request to this Office may not have arisen at all.
Allied with the foregoing, I must also highlight what appears to be the paucity of communication between both the applicant and the SWAO following the applicant’s request for an internal review. In the circumstances of the present case, where the SWAO granted the applicant’s request in full and released records to him, it is not sufficient for the applicant to seek an internal review of that decision simply on the basis that he is“not happy with the decision” . The applicant should have articulated the basis upon which he is unhappy with the decision and the reason(s) for which he sought internal review of same. The fact that he appears not to have done so, in practice, made any internal review of the SWAO’s decision effectively futile, where the original decision was to grant the applicant’s request in full. However, the SWAO should also have been more proactive in seeking more precise grounds from the applicant following his request for an internal review of its decision.
I also wish to comment upon the unacceptable standard of submissions provided by the SWAO to this Office during the course of the review. The limited submissions made were provided on a piecemeal basis which, for the most part, did not properly engage with the queries raised in the request for focused submissions sent by this Office. The dissatisfactory state of the SWAO’s submissions was communicated to it by an Investigator from this Office who requested that the SWAO provide detailed responses to the queries raised in the request for focused submissions. The supplemental submissions received failed to fully address the queries raised or the gaps in the SWAO’s original submissions and consisted of statements rather than detailed answers which this Office would ordinarily expect from a public body. The Investigator subsequently emailed the SWAO with a list of further queries but the SWAO did not respond to that correspondence.
Such conduct on the part of a public body engaging with this Office is wholly unacceptable. It is the responsibility of the public body in a case such as this to satisfy this Office that it took all reasonable steps to identify the records sought by the applicant - that was the purpose of the queries raised in correspondence from this Office. It is disappointing that certain of these questions should go unanswered, particularly where the SWAO is under a statutory obligation to process FOI requests in accordance with the provisions of the Act. I suggest that the SWAO consider the manner in which it engages with this Office in future – having regard to its statutory obligations under the Act - in order to ensure that it provides responses to queries raised by this Office in a comprehensive manner going forward, which recognises the importance of its statutory obligations.
As set out above, this review arises in circumstances where the applicant’s request has been granted by the SWAO and subsequently affirmed by way of internal review. In his application to this office, the applicant stated that he was not satisfied with the records he had been provided on the basis that he only been provided with records for 2024 and 2025, whereas the scope of his request concerns records from January 2020 to July 2025. It is necessary to assess whether the SWAO has taken all reasonable steps to identify all documents falling within he parameters of the applicant’s request.
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 in arriving at his/her decision and I must also assess the adequacy of the searches conducted by the FOI body in looking for relevant records. Such evidence generally consists of the steps taken to search for the record 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. Furthermore, this Office can 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.
In its submissions to this Office, the SWAO said it does“not have any further information” in respect of the applicant’s request. It said it is a separate body to the Department of Social Protection, and if the applicant required more information, he would have to“request [it] from them directly” . As I have already highlighted above, it is the duty of the public body to direct the applicant’s request to the appropriate body in accordance with the terms of the Act where it believes another public body to possess the records sought by the applicant.
Following further correspondence from this Office regarding the searches carried out by the SWAO, it submitted that it carried out searches in respect of the timeline set out in the applicant’s request (i.e. January 2020 to July 2025). However, while it referred to its internal database and hard copy record retention policy, it did not confirm whether either hard or soft copy records were in fact searched. As I have outlined above, it did not respond to the Investigator’s request for further clarifications.
The question I must consider is whether the SWAO has taken all reasonable steps to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s FOI request. Given the circumstances outlined above, and the absence of adequate responses to the queries raised by this Office, both in its original request for focused submissions and subsequent correspondence, I am not in a position to conclude that the SWAO has taken all reasonable steps to locate all relevant records that it holds.
Having considered the limited submissions made by the SWAO in this case, I simply cannot find it was justified in refusing access to further records under section 15(1)(a) of the FOI Act. In the circumstances, it seems to me that the most appropriate course of action to take is to annul the SWAO’s decision and remit the matter to the SWAO. The effect of this is that the SWAO must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the SWAO’s fresh decision. The applicant should note that the SWAO can only consider records it actually holds. If he wants access to records held by the Department, he should make a separate request directly to the Department.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the SWAO’s decision and direct it to carry out a new decision-making process on the applicant’s request.
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