Case number: 99046
Records relating to disability benefit claim - whether records did not exist or could not be found after all reasonable steps to ascertain their whereabouts had been taken - section 10(1)(a).
The requester had been in receipt of disability benefit which was discontinued. He sought all records held by the Department about him from 1982 to 1987/88. The Department stated that all documents for that period had been destroyed and refused the request under section 10(1). Following commencement of the review, records were located in the Social Welfare Appeals Office and the Central Records Section of the Department. These records were released to the requester. The Department provided the Commissioner with information relating to its archival policy, copies of the authorisations by the Acting Director of the National Archives authorising the destruction of records of the nature sought and details of the searches which had been carried out for the records. It argued that, in line with its normal archival procedures, the records had been destroyed.
The Commissioner found that the matter he had to address was whether the Department's decision to refuse access to the records pursuant to section 10(1)(a) was justified. In doing so, he must ascertain the evidence available to the decision maker, ascertain whether further particular evidence should have been sought and decide whether, on the basis of the available evidence, the decision maker was justified in deciding that the records did not exist or could not be found after all reasonable steps had been taken to ascertain their whereabouts. The Commissioner said that in such cases he will ascertain the record management practices of the public body as they pertain to the records in question including how the records are created, used, consulted, stored and destroyed. He will look at whether there is a register of files and what steps were taken to find the records. The question of whether all reasonable steps have been taken to locate the records will depend on the facts of each case.
The Commissioner was satisfied that the Department's archival policy was as outlined to him and that authorisation had been obtained from the Director of National Archives for the destruction of records of the nature sought. He accepted the evidence of the Department with regard to its record keeping and was satisfied that all reasonable steps had been taken to ascertain the whereabouts of the records. He affirmed the decision of the Department.
Mr ABX made a request under the Freedom of Information Act, 1997 (the Act) to the Department of Social, Community and Family Affairs (the Department) which was received by the Department on 7 July 1998. In his request Mr ABX stated "Some years ago I was getting Disability Benefit and I think it was in 1987/88 this social welfare allowance was discontinued I am now seeking to find out why this was so I am requiring all of the documents you have on file about me since 1982 ...". In its initial decision made on 4 August 1998 the Department stated that the documents were no longer available and that all reasonable steps had been taken to identify and locate the records. The Department stated that all documents and files for the period 1982 to 1987/88 had been destroyed. Mr ABX applied for internal review specifying that he was seeking records from 1982 to 1987/88. In its decision on internal review dated 21 September 1998 the Department stated that, in line with normal archival procedures, the records requested by Mr ABX had been destroyed. The Department relied on section 10(1) of the Act in its decision.
Mr ABX applied to my Office for a review of the decision of the Department on 5 February 1999. I accepted this matter for review.
Following the commencement of the review, the Department discovered that Mr ABX's disability benefit claim had been the subject of an appeal. The Department discovered that the appeal file still existed in the Social Welfare Appeals Office and forwarded a copy of Mr ABX's request to that Office. The Social Welfare Appeals Office furnished a copy of all records held by it on the disability benefit appeal file to the requester on 9 March 1999. My Office then contacted the requester to confirm whether he still wished to proceed with the review of the decision of the Department. Mr ABX wrote to this Office on 12 April 1999 and asked that the review be continued and that he be sent any further records.
My Office sought details from the Department regarding its record management practices including details of the records which were created, the Departmental guidelines for the archiving and destruction of records and the authorisation necessary under the National Archives Act, 1986 for the destruction of records. My Office also sought details of the steps taken to find the records. Both the Department and Mr ABX were afforded the opportunity of making submissions to me.
During the course of the review the Department located certain records which had been sought, including computer data and a microfiche record, in its Central Records Section and released these to Mr ABX in December 1999. My Office wrote to Mr ABX on 16 May 2000 setting out the steps taken by the Department to locate the records he had sought and informing him of the Department's policy on the storage and destruction of records. In the light of this information and the release of the records which had been located, my Office asked Mr ABX to consider settling the review or to provide any further information which might assist in the location of the further records sought. Mr ABX did not respond to this letter. I am therefore making a decision in the matter under section 34(2) of the Act.
My Office wrote to the requester and the Department affording both parties the opportunity of making submissions to me in relation to any matter relevant to the review. Mr ABX did not make a submission. In its submission the Department stated that all extant records of correspondence between it and the Social Welfare Appeals Office relating to the case exist only in the file held by that Office and that file had now been released in full to Mr ABX. The Department stated that disability benefit claim papers are destroyed after five years and Medical Referee reports are kept only for two years unless there is ongoing action in the case. The Department provided a copy of the current Departmental Circular regarding the destruction of documents. This Circular draws attention to the terms of the National Archives Act, 1986, under which the Department is obliged to ensure that authorisation has been received from the Director of the National Archives for the destruction of documents before any documents can be destroyed. The Department stated that it believed that the version of the Circular which existed at the time the records in question were destroyed would have been substantially the same. The Department also furnished copies of two certificates signed by the Acting Director of the National Archives on 9 January 1989, authorising the destruction on an on-going basis of (a) disability benefit claim files where payment had ceased and (b) Medical Referee reports. The Department informed my Office that the records in this matter would have been held by the Disability Benefit Section and the Medical Referee Section of the Department. It confirmed that the files are used only by the sections that created them. It stated that there would also be records held by the Central Records section. Records in that section are now computerised and the older records in that section have been transferred to microfiche. The records held by that section would include a summary of the dates of the claim, credits and contributions.
Following the commencement of the review, the Department searched for the records in the Central Records Section of the Department. The Department located certain records, including computer data and a microfiche record. The microfiche record was a copy of the original record of Mr ABX's insurance card. However the information it contained predated the date of the information which was sought, the latest date thereon being 5/12/80. It did not therefore fall within the terms of the request. The rest of the records located fell within the terms of the request and the Department agreed to release those records to the requester. It produced printouts of information from the computer records which it sent to Mr ABX on 17 December 1999. The Department released a copy of a printout of the computer records detailing four disability benefit claims, a copy of a PC Enquiry facility printout detailing contributions from 1980 to 1988, a copy of an Infosys Central Records Enquiry containing claim details and a copy of another PC Enquiry facility printout which contained remarks which the Department explained in its covering letter to Mr ABX. A copy of a letter which had been sent to the requester on 19 August 1998 detailing his contributions from 1978/79 to 1998/99 which had been created after the date of the request was also furnished to him.
The Department informed my Office that the information relating to the requester which is held on computer may be viewed or printed in a number of formats. It said that, in addition to the records which it sent to Mr ABX, the same information may be produced in other formats, but that these are merely duplication of the information already furnished. The Department stated that the printouts it supplied to Mr ABX on 17 December 1999 are a full disclosure of these records for the period requested, 1982 to 1988. The position in relation to the format of the records released was explained to Mr ABX by my Office in its letter of 16 May 2000 and he did not raise any issue in relation to the matter.
The Department confirmed that searches were made by it in the Disability Benefit Scheme Section and the basement of its offices where the last two years' records of that section were stored. Searches were also undertaken in the Medical Referee Section.
The Department expressed regret for the failure to check its computer records at the time of the initial request or internal review. It states that this was due to the inexperience of the relevant officers in dealing with cases where paper files were destroyed. It also stated that the wording of the request which referred to 'documents' and the fact that all action dealing with decisions to stop disability benefit payments is recorded on paper files, contributed to a narrow interpretation of the request.
The Department has released the additional records which it located following its search of the Central Records Section. The Department has refused access to any further records on the basis that, in line with its normal archival procedures, the records have been destroyed. The Department relies on section 10(1)(a) of the Freedom of Information Act, which provides as follows:
"10.(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 matter which I must address in this review is whether the Department's decision to refuse access to further records pursuant to section 10(1)(a) is justified. I have found that there can be some misconceptions about my role in cases of this nature where the public body has decided that the records do not exist or cannot be found. Occasionally, requesters may expect me or my officials to carry out a search for the records in question. However, I see my role in these cases as one of reviewing the decision of the public body and deciding whether that decision was justified. This means that, as in any other review, I must have regard to the evidence available to the decision maker and the reasoning used by him or her in arriving at the decision.
The evidence in such cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body which formed the basis for the decision of the public body. Generally speaking, in reviewing the decision of the public body, I will
My role is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether he or she was justified in coming to his/her decision in the case.
In approaching these cases, my Office will seek to ascertain the record management practices of the public body as they pertain to the records in question. Among the matters which I will normally look at are:
What is being sought here is information about the record management practices of the public body insofar as those practices are relevant. The degree of detail required will vary according to the type of records being sought. An exhaustive description of the public body's record management practices is not normally needed nor in many cases is it useful.
In light of this information, the question of whether all reasonable steps have been taken to locate the records will be considered. In doing so, each case is considered on its merits. Where the public body accepts that the records sought exist but cannot be located, I would normally expect the search to extend to locations where the records might be as opposed to should be. This is because misfiling or misplacing of records is a common enough occurrence. Given that this is so, if the public body has confined its search to the places where the records ought to be then it can hardly be said to have taken all reasonable steps.
Where a file appears to have been misplaced (i.e. associated with another unrelated file or filed in the wrong series altogether), my Office would usually seek to establish from the relevant person in the public body the most common causes of files "going missing" and whether there may be further ways of locating such files.
If a file is missing or has been destroyed then it may be possible to reconstruct it, either wholly or partially, if its contents were generated within the public body. Whether this is necessary or useful (from the requester's point of view) depends on the circumstances of the case. If there has been correspondence with another public body, it may be possible either to obtain copies of some records or to identify reference numbers which could help in the search. The question of whether there has been a deliberate removal of the records will also be considered.
My Office may also consult the requester who may be able to furnish further information about his/her dealings with the public body which will assist in a search. The public body may be required to take further steps to locate the records where it appears that all reasonable steps have not been taken.
In this case, the Department has clarified the nature of the records which it would normally hold in relation to a disability benefit claim, where such records are held both while in active use and after they cease to be in active use, prior to destruction. The Department has also confirmed that the files are used only by the sections that created them. I am satisfied on the basis of the information supplied that the records relating to Mr ABX's disability benefit claim would normally have been held by the Disability Benefit Section and Medical Referee Section prior to destruction and that certain summary records relating to the claim are held by Central Records section.
I note that in making its initial decision and decision on internal review the Department did not check its computer records in the Central Records Section. However, following commencement of the review, the Department checked its Central Records Section and Mr ABX has now been given access to the records held by that Section. The only matter, therefore, which I have to consider is the Department's decision regarding the records previously held by the Disability Benefit Section and Medical Referee Section.
The Department outlined its policy on the storage and destruction of records. It stated that disability benefit claim papers are destroyed after five years and Medical Referee reports are kept for two years only unless there is ongoing action in the case. However, the Department failed to trace any written direction regarding periods for which files are held before destruction. It informed me that the practice is controlled by the filing space available and by precedent. Whenever space is required the paperkeepers are given verbal directions to destroy particular series of files, normally files older than five years for disability benefit claims and older than two years in Medical Referee section. Certain files may be kept longer e.g. disability benefit claim files where an over payment is still being recovered. The appeal files are retained by the independent Social Welfare Appeals Office. The Department also informed me that no registers are kept of files in either the Disability Benefit Section or Medical Referee Section as the computer records show the existence of the claim, the date the claim was opened and closed, and the RSI Number is used to trace the file if it is required again.
The Department has furnished me with the authorisations given by the Acting Director of the National Archives and the Departmental Circular regarding the destruction of documents. The authorisations allow for the destruction of disability benefit claim files where payment has ceased and of Medical Referee reports. The Department's Circular stresses the need to ensure that authorisation is received from the Director of National Archives for the destruction of documents. I note that the Circular does not stipulate the periods for which records should be stored prior to authorised destruction and that the Department was unable to trace any other written direction regarding this. In the circumstances of this case, I am satisfied that the Department's current archival policy is as outlined by it to me. I am also satisfied that authorisation had been obtained from the Director of National Archives for the destruction of records of this nature.
I note that the Department states that it would not destroy such records where there is ongoing action in the case and I also note that Mr ABX's appeal in relation to his disability benefit claim was determined in 1988. The Department states that there was no ongoing action in the case after the determination of the appeal. Mr ABX was given the opportunity by my Office to provide details of any ongoing action which may have taken place and he has not done so. The Department decided that the further records which it held have been destroyed in accordance with the Department's archival policy and the authorisations issued by the Director of National Archives.
I accept the evidence of the Department regarding its record keeping. On the basis of the further steps taken by the Department after the commencement of this review and the information supplied to me by the Department, I am satisfied that all reasonable steps have been taken to ascertain the whereabouts of the records in this case. I am satisfied that the Department was justified in concluding that the further records sought in this case (i.e. other than the records held by the Central Records Section) were once held by the Disability Benefit Section and the Medical Referee Section but that they no longer exist, having been destroyed in accordance with the Department's normal practice.
It may be of some assistance to the Department and public bodies generally if I make some comments about the issues concerning searching for records, record management and record destruction arising in this case. The Department has expressed regret for its failure to check its computer records at the time of the original decision and the decision on internal review. When the matter came on review to my Office the Department checked its computer records. I think that this case illustrates how important it is for public bodies to bear in mind that most requesters will be unaware of the manner in which the public body holds records and will not know whether those records are paper records or electronic records. The definition of 'record' in section 2 of the Act specifies that a record includes
"any form in which data (within the meaning of the Data Protection Act, 1988) are held, any other form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically...".
In cases such as these, where a public body holds computer records, a broad interpretation of the records sought include electronic records is necessary.
The Department failed to trace any written direction regarding the periods for which files are held before destruction and stated that no registers are kept of files in either the Disability Benefit Section or Medical Referee Section. It seems to me that where no register is kept of files there is no system of verifying the location or destruction of a file. I take the view that the FOI Act imposes on public bodies a duty to ensure that their record management systems are capable of enabling them to meet their obligations under the Act. In my view, public bodies should also have stated record management policies which set out the standards in relation to the creation, maintenance and destruction of physical and electronic records. Destruction should only take place in accordance with a clearly stated destruction policy and in compliance with the provisions of the National Archives Act, 1986 in the case of those public bodies which are covered by that Act. The fact that a file has been destroyed should be recorded. I am of the view that it would be preferable if there were written directions concerning the periods of time for which files are retained prior to destruction. I also take the view that, where files are destroyed, it would be preferable if this was recorded separately, thus providing verification of the fact that the file was, in fact, destroyed.
Having completed this review and in light of the release of the records by the Department during the course of the review, I affirm the decision of the Department of Social, Community and Family Affairs.