Case number: OIC-109256-G1P7Y2
3 November 2021
The applicant, a service user of WCA, acted through his father in this FOI process and references to correspondence with the applicant may be taken to include correspondence with his father on his behalf, as appropriate. Following an earlier FOI request by the applicant, that was also the subject of review by this Office (Reference: OIC-109248), the applicant made a request on 16 April 2021 for financial information held by WCA. He sought access to records containing details of the budget allocated to him from 1999 to 2021, including a breakdown of expenditure for each year and, if there was a surplus of the budget in any year, where this surplus went. On 30 April 2021, WCA released one record to the applicant and refused access to any further records under section 15(1)(a) of the FOI Act, on the grounds that no further records existed. The applicant sought an internal review of that decision on 27 May 2021, following which WCA affirmed its decision. On 22 June 2021, the applicant sought a review by this Office of WCA’s decision to refuse access to any further records relevant to his request under section 15(1)(a) of the FOI Act.
Before WCA was asked for submissions by this Office, it identified one other record that it released to the applicant. I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out the review, I have had regard to the submissions made by WCA as well as the applicant’s comments in his application for review and in further communications with this Office. I have had regard to the records that were released, as well as to other records released on foot of a separate, but related, FOI request referenced above. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether WCA was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for further records containing details of the budget allocated to him, the expenditure, and the surplus (if any) from 1999 to 2021 on the grounds that no further records exist.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Secondly, it is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Finally, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
Section 15(1)(a) of the 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. The Commissioner's role in a case 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/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 the 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 the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
WCA provided submissions to this Office in which it outlined details of the searches carried out and its explanation as to why it believed that no further records existed. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, WCA’s position is that while it carried out searches of its finance and IT systems, it does not hold individualised records for the budget allocated or spent in relation to specific service users, nor is it required to do by the HSE.
WCA stated that prior to 2014, the applicant was a child and availed of some services from WCA that were funded by means of a block grant to support a general cohort of children. It stated that no particular funding was received or allocated at that time to specific children. From 2014, when “school leaver funding” was received by WCA from the HSE in respect of the applicant, it stated that it allocated this funding to a named day service with shared premises, vehicles, management teams, staff teams and overheads. It stated that all costs associated with the delivery of this day service were recorded under a cost centre for the day service by the Financial Controller and that records do not exist separating out expenditure on the applicant from expenditure on other individuals attached to the same service. WCA explained that it does not look at funding in terms of surplus or deficit for individuals, but in terms of the overall organisation trying to maintain a balanced budget. It stated that there is a scheme which commenced in 2019 whereby families can apply to the HSE for access to and to manage personalised budgets on behalf of their family member but that this was not the position in the applicant’s case.
In response to further questions from the Investigator, WCA explained that the way in which the HSE has allocated funding for school leavers has varied over the years. In some years no dedicated funding was provided and in other years a letter was sent outlining the total amount of funding being allocated for services for school leavers that year. Most recently, in the last 3 years, WCA has received a letter from the HSE listing the total funding allocation and listing the names (only) of the school leavers covered under this allocation. This does not, however, break down a specific amount allocated to the applicant (or to any other individual) and at no point has the HSE allocated school leaver funding to the WCA on an individual basis.
Both records that were released to the applicant refer to a “2014 school leavers” budget allocated against the applicant’s name to the named day service and show an amount of €22,500. WCA explained that these came from a HSE generated letter from 2015 that included details of the previous year’s budget. It stated that it was not the HSE’s usual practice to include this detail, and that an equivalent letter is not held for other years. The applicant suggested that this indicated a surplus of €22,500 for 2014. WCA clarified that this was not a surplus but was the funding allocated from September to December 2014 i.e. 4/12 of the full year funding of €67,500.
The applicant stated that he and his family had been told by the HSE that the budget allocated for him [to WCA] was to be spent solely on him, through the delivery of an individualised service. He referred to specific records in support of this, that were released to him in the course of the earlier FOI request that was also reviewed by this Office (Case OIC-109248). Having reviewed these records, I note that record 862 contains the minutes of a 2014 meeting concerning the applicant and his care and includes a reference to a representative of the HSE stating that a certain amount of money had been “ringfenced” for the applicant’s care. Similarly, record 992 contains a reference to “if the money is in his budget” in an email exchange between the HSE and WCA in 2015 and record 1012 contains a “proposal for individualised funding” in 2016.
WCA was asked to comment on these records and it reiterated that its practice is to allocate funding to a service rather than to an individual. It stated that the term “ringfenced” was used in the HSE’s notes in the context of a broader meeting about the applicant’s needs that was not particular to WCA as the only service provider. It also stated that the 2016 proposal for individualised funding would seem to demonstrate that the funding received prior to that was not for an individualised service. In any event, it was not clear from the record who put the proposal together and there is no evidence that it would have been an acceptable proposal to either the HSE or to WCA.
It is clear that the applicant and his family have struggled for many years to get the right supports and services in place that are suitable for his complex needs. I can understand why the applicant might expect WCA to hold financial records showing how much was allocated for his care in each of the relevant years, how much of it was spent and on what, and how much (if any) was left over. However, based on the description of how WCA manages and records funding and expenditure, I accept that financial records are kept only in the context of the provision of an overall service and not on an individual basis for each service user. The records that were released showing the 2014 allocation seem to be an anomaly. The FOI Act is concerned with records that actually exist and not whether records should or should not exist. This Office has no remit to adjudicate on how FOI bodies perform their functions generally and the manner in which WCA records income and expenditure is not something for me to make a determination on.
On balance, it seems reasonable to me to conclude that further records of the type sought by the applicant do not exist. I find, therefore, that WCA has taken all reasonable steps to locate relevant records and that it was justified in refusing the request under section 15(1)(a) of the Act on the grounds that no further relevant records exist or can be found.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Western Care Association to refuse, under section 15(1)(a) of the FOI Act, the applicant’s request for further records containing details of the budget allocated to him, the expenditure, and the surplus (if any) from 1999 to 2021.
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.