Case number: 140265

Whether the Department was justified in refusing to provide a statement of reasons to the applicant, and in refusing to release further records, in relation to the discontinuance of his social welfare claim in 2011

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 6 August 2014, the applicant made an FOI request for a statement of reasons as to why his social welfare claim was discontinued in 2011. He also sought copies of the information that was considered when deciding to discontinue his claim, including "all photographs, videos, and recordings of any type on any medium in addition to written or printed notes, internal memos and all other information". On 21 August 2014 the Department issued a decision refusing his request, which it referred to as a request for access to "paperwork associated with the investigation that lead to the closing of the 2011 claim", on the grounds that no records relating to the closure of his claim could be found after all reasonable steps had been taken to locate them. On 27 August 2014, the applicant submitted a request for an internal review and also sought further details of the searches undertaken to locate the records sought. On 17 September 2014, the Department affirmed its initial decision on the grounds that no records could be found relating to the applicant's request. On 29 September 2014, the applicant applied to this Office for a review of the Department's decision.

I note that Ms Sandra Murdiff, Investigating Officer, contacted the applicant on 19 January 2015 and informed him of her view that the Department was justified in its decision not to provide a statement of reasons. She also provided details of the searches undertaken by the Department to locate records relating to his request. The applicant indicated that he did not agree with Ms Murdiff's view and sought more information relating to the Department's searches and efforts to locate records relating to the closure of his claim. On 2 February 2015 the Department wrote to the applicant, setting out the information it had located and the steps taken to find records relating to his request. The Department also enclosed copies of eight records it had located relating to his request. Ms Murdiff invited the applicant to comment following receipt of the Department's letter but he did not do so. Accordingly, I have decided to bring this review to a close by way of a formal, binding decision.

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.

In conducting this review, I have had regard to the submissions of the Department and the applicant. I have also had regard to the records the Department provided to this Office in the course of this review. The provisions of the FOI Act have also been considered.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing to provide a statement of reasons to the applicant, under section 18, in relation to the discontinuance of his social welfare claim in 2011 and in refusing access to further relevant records on the ground that no such records can be found.

Analysis and Findings

Section 10(1)(a)
During the course of this review, the Department confirmed that it had located eight records relating to the applicant's claim - these were essentially screenshots taken from ERIN (the Department's investigation outcome recording application) and ISTS (the Department's claim processing system). At Ms Murdiff's request it provided copies of these records to the applicant. The Department's position is that, other than these eight records, no further records can be located in relation to the applicant's FOI request. Accordingly, section 10(1)(a) of the FOI Act is relevant, which provides that a request for access to a record may be refused 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. 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. The Office's understanding of its role in such cases was approved by Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002] No. 18 M.C.A..

I note that Ms Murdiff contacted the Department and requested details of the steps taken to locate records relating to the applicant's request. The Department has provided comprehensive details of its record management practices and of the searches undertaken to locate all relevant records, including the following:

physical searches undertaken in Bray Local Office and in the Special Investigation Unit (SIU).
electronic searches of its computer systems ISTS and ERIN.
electronic searches of email and other electronic records of all staff who were working in Bray Local Office at the relevant time.
a search of the email account, document folder and PC of the investigator who dealt with the applicant's claim (who has since retired).

The Department has also stated that it routinely clears old files to make way for new claims and that in this case, the applicant's 2011 claim file (which would have been archived at the time) would have been part of those files considered for destruction in January 2014, as no further activity had occurred on the file. In essence, it has stated that the applicant's claim file was destroyed in the usual manner (confidential shredding) and cannot be found after all reasonable steps have been taken to locate it.

In response to the applicant's contention that a special investigation file should exist in relation to his claim, the Department stated that it was unlikely that an SIU file was created in this case. It has confirmed with the relevant investigator that that he did not destroy any investigation files relating to this case. It also informed this Office that special investigation files, once created, are retained by the Department. The Department asserts that such a file relating to the closure of the applicant's claim does not exist or cannot be found and I have no reason to doubt this assertion.

I note that, while the applicant has suggested that further records might be held by the Department, he has provided no supporting evidence to suggest that other relevant records should, indeed, exist. Having considered the submissions of both parties and the measures taken to locate the records, I am satisfied that the Department has taken all reasonable steps to locate any further records and that its decision was correctly made in accordance with section 10(1)(a) of the FOI Act. I find accordingly.

Section 18
Section 18 of the FOI Act provides that a person who is affected by an act of a public body and who has a material interest in a matter affected by the act or to which it relates is entitled to a statement of reasons for the act. The applicant sought a statement of reasons as to why his social welfare claim was discontinued in 2011. As I have indicated above, the Department located a limited number of records relating to the applicant's claim. The records located show a closure code of CL-026 on the applicant's claim. The Department stated that this code means "other" in relation to the reason for the closure of the claim and does not explain why the claim was closed. It also stated that the deciding officer who closed the claim and all the staff in Bray Intreo Centre were asked if they recalled the claim in question, and that no one had any recollection of the claim. Essentially the Department's position is that the only existing records relating to the closure of the applicant's claim do not contain the reasons for the closure of the claim and that it cannot, therefore, provide the statement of reasons sought.

Having regard to the above, I am of the view that it is not realistic to require the Department to give reasons in a case such as this where it cannot say what were its reasons. In the circumstances of this case I find that section 18 of the FOI Act does not apply.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby affirm the decision of the Department to refuse to provide a statement of reasons under section 18 of the FOI Act. I also affirm the Department's decision to refuse to release further records to the applicant, pursuant to section 10(1)(a) of the FOI Act.

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