Case number: OIC-143117-B4D7L6

Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to records that confirm the full list of benefits and/or entitlements available to the applicant or any person, on the basis that no such records exist

 

20 December 2023

 

 

Background

In a request dated 14 September 2023, the applicant sought access to “documents confirming the full list of benefits and/or entitlements available to me on application under my PPS No”. He also sought the information the Department holds on any customer’s potential entitlement to social welfare under their PPSN. On 18 September 2023, the Department issued an original decision refusing the applicant’s request under section 15(1)(a) of the FOI Act. in her decision, the Department’s decision-maker referred to her telephone call with the applicant in which she explained that no records exist within the Department of a customer’s potential entitlements under their PPS number. The Department directed the applicant to where he can find information on the qualifying conditions and processing of a social welfare claim. It said that a customer’s entitlement to any scheme is based on that customer’s application for the scheme and their individual circumstances at that time.

On 25 September 2023, the applicant requested an internal review of the Department’s decision. On 10 October 2023, the Department issued its internal review decision affirming its original decision. On 13 October 2023, the applicant applied to this Office for review.

During the course of this review, the Investigating Officer sought submissions from the Department regarding its decision to refuse the applicant’s request. The Investigating Officer provided the applicant with the details of the Department’s submissions wherein it outlined its reasons for refusing his request. The applicant was invited to make further submissions, which he duly did.

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 correspondence referred to above, including the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is concerned solely with whether the Department was justified, under section 15(1)(a) of the Act, in its decision to refuse access to the information sought by the applicant on the basis no such records exist.

Preliminary Matters

In his submissions to the Office the applicant said he is “seeking information available on entitlements to All Living Men and Women”. Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.​​

Furthermore, it is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. A person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. It is also important to note that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act, which is not relevant in this case, to extract records or existing information held on electronic devices.

Analysis and Findings

Section 15(1)(a)

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 the 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 and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for records 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 a review by this Office is not concerned with access to records that a requester believes ought to exist.

As I have outlined above, the Department provided this Office with details of its reasons for concluding that no records exist in this case. The Investigating Officer provided the applicant with these details. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In essence, the Department’s position is that records relating to the applicant’s request do not exist. It stated that a customer’s entitlement to any scheme is based on that customer’s application for a particular scheme and their circumstances at the time of the application for the scheme. It stated that it does not hold records on a customer’s potential scheme entitlements. The Department stated that no searches or keyword searches of records were carried out as the Department is firm in its position that no records exist. It stated that it does not hold records of entitlements for individuals. It stated that entitlements are based upon individual applications and on the personal information contained in the application to the Department.

In its submissions to this Office, the Department said that prior to issuing its decision to the applicant, it contacted him by telephone and explained the reason for refusing his request. Additionally, the Department noted that it had explained in its decisions how customers can access general information regarding the qualifying conditions for social welfare payment by visiting the www.gov.ie website to view the schemes and supports available that may suit their needs. The Department also informed the applicant that advice is also offered by the Citizens Information Board. In summary, it is the Department’s position that an individual’s entitlement is assessed upon receipt of an application under the relevant scheme and that information about the various social welfare schemes and supports is publicly available.

It is clear from the applicant’s submissions to this Office that he does not accept the Department’s position. That being said, he has not provided any substantive argument to dispute the Department’s position. Neither did he provide any evidence in support of his view that the Department ought to hold records relating to his request.

It is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the FOI Act the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. This Office does not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record(s) sought.

Given the Department’s explanation that it does not hold records on potential entitlements, and in the absence of evidence to suggest otherwise, it seems to me that the Department has adequately explained why no relevant records exist or can be found. In the circumstances of this case, I find that the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to records relating to the applicant’s request on the ground that no such records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse the applicant’s request under section 15(1)(a) of the FOI Act.

Right of Appeal

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.

 

Richard Crowley
Investigator