Case number: 170399

Whether the Department was justified in its decision to refuse access to a specific letter the applicant states he received from the Department in October 2015 under section 15(1)(a) on the ground that the record sought does not exist or can be found     


Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
 

Background

On 16 May 2017, the applicant made an FOI request for all records held by the Department pertaining to him. On 13 June 2017, the Department issued a decision in which it granted access to the majority of the records but refused access to some information under section 37 and three records under sections 15(1)(a) of the FOI Act. The applicant submitted a request for an internal review of that decision on 20 June 2017. In its internal review decision dated 29 June 2017, the Department affirmed the original decision. On 14 August 2017, the applicant applied to this Office for a review of the Department’s decision.  

During the course of the review, Ms Hannon of this Office provided the applicant with details of the searches undertaken by the Department in an effort to locate relevant records and informed the applicant of her view that the Department was justified in deciding that no further records exist and that the redacted information was personal information relating to a third party. Ms Hannon invited the applicant to make further submissions. Subsequent to this, the applicant narrowed the scope of his review to one specific letter he states that he received from the Department in October 2015 requesting him to cease sending in medical certificates to the Department. Ms Hannon supplied these details to the Department, following which the Department located a letter dated 20 October 2015 that the Deciding Officer in Illness Benefit Section sent to the applicant in relation to a review of his entitlement to credited illness benefit contributions.

The letter indicated that following a review, it was decided that the applicant was not entitled to credited illness benefit contributions. It further stated that if he did not wish to have that decision reviewed, he should stop sending in medical certificates to the Department. However, the applicant stated this is not the letter he was seeking. In a further email dated 29 November 2017, Ms Hannon provided the applicant with details of further searches undertaken by the Department in an effort to locate further relevant records and informed him of the Department's position that no further records exist or can be found. Ms Hannon informed the applicant of her view that the Department was justified in deciding that no further relevant records exist. 

The applicant has chosen to progress with this review so I have decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the Department and to the correspondence between this Office and both the applicant and the Department on the matter. 

Scope of the Review

This review is concerned solely with whether the Department was justified in refusing access to a letter the applicant says he was sent in October 2015 under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist or can be found. 

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases 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 and the reasoning used by the decision maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.  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 FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. 

It is important to note that the FOI Act does not require a public body to continue searching indefinitely for records that cannot be found and this Office can conclude that a public body has conducted reasonable searches even where records that are known to have existed cannot be located. Nevertheless, in such circumstances, I would expect the body to notify the requester immediately where records that could not previously be found are subsequently located. 

As I have outlined above, the applicant believes that the letter the Department found and released during the course of the review is not the letter that he was seeking. Having examined the letter, I note that it accurately fits the description of the letter the applicant was seeking. It issued in October 2015 and it instructed the applicant to stop sending in medical certificates, as he described. However, based on the possibility that another, similar, letter might exist, Ms Hannon of this Office sought further details from the Department as to the searches undertaken to identify all relevant records.

In summary, the Department stated that it conducted both electronic and physical searches for relevant records. It said that two members of staff in the Medical Review Section of the Illness Benefit Branch were consulted and both made independent searches of their computer systems and no indication of a letter /form having issued to the applicant was found. Members of staff in the Maintenance Section dealing with Illness benefit claims were also consulted and stated that there was no record of the letter being issued. A second search was undertaken in the Medical Review Section and the result was the same. A different individual in the Maintenance Section dealing with illness Benefit claim was also consulted and confirmed that there is no record of the letter described having been issued. The Department stated it has made a search of three IT systems and a further review of the Illness Benefit dockets. It said no remarks on any of the IT/record systems have been found to confirm that the letter referred to was issued. 

The position of the Department is that it has taken all reasonable steps to look for the record sought. Having regard to the searches undertaken by the Department, and to the contents of the record that the Department found and released during the course of the review, I consider that the Department has taken all reasonable steps to ascertain the whereabouts of further relevant records. I find, therefore, that it was justified in refusing the applicant's request for access to a further letter he states was sent to him in October 2015 under section 15(1)(a) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Department’s decision to refuse access to a specific letter the applicant states he was sent in October 2015 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.

Stephen Rafferty
Senior Investigator