Case number: 140246

Whether the Department was justified, under section 10(1)(a) of the FOI Act, in refusing to release further records relating to the applicant on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 15 April 2014, the applicant submitted a request to the Department for "everything held about me". On 1 May 2014, the Department decided to grant the request in full and released 42 records it had located. The applicant sought an internal review of this decision as she was not satisfied that all relevant records had been released and on 20 June 2014, the Department issued an internal review decision affirming its original decision. On 16 August 2014, the applicant sought a review by this Office of the Department's decision.

During the course of this review the applicant submitted that certain records which she believed might be held by the Department had not been released to her. Specifically she argued that there was a five year gap where she believed that she had not received all relevant records, that records were held by specific named officials; that records should exist of correspondence concerning the applicant between the Department and outside agencies, and that records should exist relating to a data protection matter. I note that Mr. Benjamin O'Gorman of this Office contacted the Department and made enquiries in this regard. The Department stated it was not able to locate any other further records falling within the scope of the applicant's request.

Mr O'Gorman informed the applicant, by emails dated and 21 October 2014 and 25 November 2014, of the searches undertaken by the Department to locate all relevant records and of its responses to queries raised arising from the applicant's concerns. In his email of 25 November 2014, he outlined his view that the Department's refusal to grant access to further records on the ground that no further records exist or can be found was justified and he invited the applicant to make further comments if she disagreed with his view. As no response was received from the applicant by the requested response date of 2 December 2014, I have decided to conclude this review by way 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. I have had regard also to communications between this Office and the applicant, and to communications between this Office and the Department. Finally, I have had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether or not the Department was justified in its decision to refuse access to further records coming within the scope of the applicant's request on the basis that no further relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.

Preliminary Matters

In submissions to this Office, the applicant stated that she was of the opinion that she was the subject of "malicious gossip" and further stated that she wished to identify the source of same. Section 8(4) of the FOI Act provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons the requester has for making a request. It is important to further note that the Commissioner's remit does not extend to adjudicating on how public bodies carry out their functions generally or to investigating complaints against public bodies.

Analysis and Findings

The Department's position is that it cannot locate further relevant records. Accordingly, section 10(1)(a) of the FOI Act is relevant.

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 a case 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 the website of this Office at www.oic.ie).

In submissions to this Office dated 17 October 2014 and 18 November 2014, the Department provided comprehensive details of the searches it undertook in an effort to locate all relevant records coming within the scope of the applicant's request and it provided details of why certain records identified by the applicant were not held by it. As I have outlined above, Mr O'Gorman of this Office has already provided the applicant with details of those searches and explanations. Therefore, while I do not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.

I note, in particular, the explanations provided by the Department for not holding other relevant records as the applicant suggested should exist. For example, in respect of the alleged five year gap, the Department explained that there was no Social Welfare Inspector's review of the applicant's means and circumstances from 2007 until 2014 and that the scarcity of material on file for that period would therefore be expected. On the question of the existence of other records such as those related to a claim for supplementary welfare allowance or those related to a data protection matter, the Department explained that the events and records related to those events that took place after the applicant submitted her FOI request. Accordingly, all such records fall outside the scope of this review.

While the applicant may not be satisfied with the Department's responses, she has provided no supporting evidence to suggest that other records do, indeed, exist. The position of the Department is that it cannot find any further records relevant to the applicant's FOI request. Having reviewed the steps taken by the Department to locate the records at issue and having considered its explanation of why certain other records do not exist, I am satisfied that the Department has taken all reasonable steps to locate all relevant records and I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's refusal of further records of relevance to the request.

Right of Appeal

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.

Stephen Rafferty
Senior Investigator