Whether the SWAO was justified in refusing, under section 15(1)(a) of the Act, the applicant's requests for additional records relating to her appeal with the SWAO on the ground that no further relevant records exist or can be found apart from those already released
10 November 2021
This decision is a composite decision relating to three cases that have their background in a dispute the applicant and her husband have with the SWAO over the Department of Social Protection’s (the Department) assessment of the couple’s State Pension Non Contributory (SPNC) entitlements. It appears that the applicant’s husband is in receipt of an SPNC and had been in receipt of a qualified dependant adult payment in respect of the applicant. On turning 66, the applicant applied for an SPNC in her own right, at which point the means of the couple were reviewed in order to assess the entitlements of the applicant.
The Deciding Officer of the Department concluded that the applicant had failed to declare income in her SPNC application. Amongst other things, the Deciding Officer considered that the applicant was operating as a self-employed acupuncturist and had failed to declare her resulting income. Failure by the couple to comply with numerous requests for information sought on their means for SPNC assessment purposes resulted in the disallowance of the application made by the applicant. Following this, the applicant wrote to the Chief Appeals Officer in both English and Chinese to request an appeal of the Department’s decision.
While the FOI requests the subject of this review were made by the applicant, both she and her husband engaged with this Office in the course of this review. For the sake of convenience, throughout this decision, I refer to correspondence with either party as correspondence with the applicant.
The applicant and her husband have made a number of FOI requests to both the Department and the SWAO for various records relating to this dispute. This review concerns three of those requests:
1. On 26 June 2020, the applicant sought all records held by the SWAO relating to her appeal, particularly all records submitted to the SWAO concerning the appeal with particular reference to the request for review/appeal dated 2 May 2019 to include all records concerning the two versions of the appeal the applicant identified (FOI 2020-15817).
2. On 26 August 2020, she sought copies of her formal appeal in English and Chinese dated 25 April 2019. She referred in particular to the notice of appeal sent from the SWAO to the Department on 2 May 2019 to include all records generated in the Registration Section of the SWAO relating to the appeal (FOI 2020-16148).
3. On 30 January 2021, she sought a copy of the notice of her appeal sent by the Registration and Control Section of the SWAO to the Appeals Section of the Department’s office in Sligo on 2 May 2019. She also requested all records generated relating to the appeal (FOI 2021-16810).
The SWAO granted Request 1 in part. It stated that records prior to 11 November 2019 had been provided to the applicant in previous FOI requests, but it granted records created after that date. With regard to phone calls in relation to the matter, the SWAO advised that it did not create records of phone calls and therefore was relying on section 15(1)(a) in refusing that part of the request. Following a request for internal review, the SWAO affirmed its original decision on 26 August 2020.
Request 2 was refused under section 15(1)(i), on the basis that all records falling under the scope of the request had been released under FOI-2019-14308. The SWAO listed 6 records falling under the scope of the request which had been previously released. That decision was affirmed at internal review stage on 22 October 2020.
Request 3 was also refused under section 15(1)(i). Following a request for internal review, the SWAO affirmed its original decision on 29 March 2021.
By letters dated 22 May 2020, and 23 June 2020, the applicant sought reviews by this Office of all three of the SWAO’s decisions. During the course of the reviews, this Office sought submissions from the SWAO in relation to records provided to the applicant and the searches undertaken to identify further relevant records. Ms Whelan of this Office provided a summary of those submissions to the applicant, and invited her to make further submissions. The applicant made further submissions.
I have now completed my reviews in accordance with section 22(2) of the FOI Act. Having regard to the overlap in the three requests, I have decided to conclude the reviews by way of a formal, binding composite decision. In conducting the reviews, I have had regard to the correspondence between the applicant and the SWAO as outlined above and to communications between this Office and both the applicant and the SWAO on the matter. I have also had regard to the submissions of the SWAO in relation to case OIC-92953-L2Y8L5, insofar as they are relevant to this review.
Scope of Review
There is a significant overlap between the three requests made by the applicant outlined above as well as with previous FOI requests to the SWAO on the matter as a whole. I note that the SWAO released records relating to the applicant and her husband on a number of occasions, both on foot of some of the previous requests made and outside of the FOI process. In its submissions to this Office in case OIC-92953, the SWAO said that during its processing of the first request it received from the applicant and her husband (FOI-2019-13827), its internal reviewer contacted the applicant’s husband to clarify what additional information was sought as according to the SWAO’s records, a copy of the full file had already been provided outside of the FOI process. As a result of that conversation, the SWAO released additional correspondence, namely correspondence between the applicant and the SWAO and an Appeals submission. According to the SWAO, at that stage the entire SPNC file for the applicant had been provided to her.
Furthermore, in submissions the SWAO made to this Office in the course of review OIC-92953, the SWAO provided a schedule of records, comprising the applicant’s full SPNC file, that were released to her in response to an FOI request received on 18 October 2019 (FOI 2019-14308). The SWAO reissued copies of those records to the applicant on 11 November 2019.
As outlined above, on foot of request 1 (FOI 2020-15817), the SWAO granted access to all records created after 11 November 2019 and refused additional records under section 15(1)(a) of the FOI Act.
As noted above, requests 2 and 3 were refused under section 15(1)(i) of the Act. That section provides for the refusal of a request where the request relates to records already released, either to the same or a previous requester, where the records are available to the requester concerned or where it appears that the requester is acting in concert with a previous requester.
Having considered the various submissions made by the applicant during the review, it seems to me that she does not dispute that the records which the SWAO has identified as being released are available to her. Instead, it appears her primary concern is that is that she did not receive all relevant records held by the SWAO.
Accordingly, in my view it is neither practical nor necessary for me to attempt to identify each and every record released to the applicant at each stage of the engagements between the parties to determine if any of those records were not, in fact, released or if any of those records are not available to the applicant. I accept the SWAO’s assertions that it has released all the records it says it released. The question remaining, therefore, is whether the SWAO holds other relevant records, apart from those already released, that it did not release. The SWAO’s position is that it does not.
Section 15(1)(a) provides for the refusal of a request where the records sought do not exist or cannot be found. Accordingly, this review is concerned solely with whether the SWAO was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records apart from those already released on the ground that no further relevant records exist or can be found.
Before I address the substantive issues arising, I wish to address a number of preliminary matters.
First, it is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
Secondly, given the nature of the applicant’s submissions, I feel it is necessary to state that, as has previously been explained to the applicant and her husband, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As outlined above, our role is limited to determining whether the SWAO was justified in refusing to release additional relevant records on the ground that no further relevant records exist or can be found.
Analysis and Findings
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if 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 such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office made during the course of case OIC-92953-L2Y8L5, the SWAO provided details of searches conducted in an effort to locate all records relating to the applicant. In short, the SWAO outlined the types of records that are created in cases such as this and the location of the searches it undertook. It stated that it consulted with relevant staff in order to determine whether any further records were held.
In the course of this review, the SWAO explained that the applicant’s records are held on a hard copy file which the SWAO received from the SPNC Section of the Department of Social Protection. The SWAO stated that the hard copy file is the property of the Department and the reason the SWAO has the file is due to the fact that the applicant requested an appeal. The SWAO explained that the file was assigned to an Appeals Officer on 4 December 2019 and any correspondence received from the applicant and replies from the Appeals Officer are put on the hard copy file.
The SWAO stated that since the first of the couple’s FOI requests have been dealt with, there have been a further 8 FOI requests from the applicant regarding her appeal file, maintaining there are outstanding documents not received. The SWAO stated its position that everything on the appeal file had been released to the applicant, including correspondence from her addressed and responded to, correspondence regarding oral hearings and draft letters from the Appeals Officer.
With regard to the applicant’s notice of appeal, the SWAO stated that on 2 May 2019, a scanned copy of the request for appeal was received from a staff member in the Department via email to a staff member of the SWAO. The SWAO explained that its staff member registered the appeal that day and sent a SWAO15 letter, which is notification that an appeal has been registered, and a request that the section forward the Deciding Officer’s submission in accordance with the statutory provisions and all the relevant papers so that the appeal could be processed.
The SWAO further explained that on 7 May 2019, an original letter of appeal was received by the SWAO from the pensions section in the Department. The SWAO stated that it is a statutory requirement of the appeals process that the relevant Departmental papers and comments by the Deciding Officer on the grounds of appeal be sought by the SWAO. The SWAO stated that as the file was back with the Deciding Officer of the Department, on 22 May 2019 the correspondence (i.e. the original letter of appeal) was sent to the Department from the Control Section of the SWAO to associate with the file.
The SWAO stated that the applicant’s first FOI request for her complete file was granted by decision dated 11 November 2019 (FOI 2019-14308). It outlined that pages 3-7 of the released records comprise the correspondence sent from the Control Section to the Department enclosing both an English and Chinese version of the Notice of Appeal, dated 24 May 2019.
In her application for review to this Office in respect of case OIC-102590-S8M6GC, dated 18 January 2021, the applicant stated that she had retained a copy of her original appeal submitted in both English and Chinese.
Having examined the applicant's submissions, it seems to me that she believes the SWAO should be in a position to provide additional records to support its handling of her notice of appeal. The SWAO’s position is that the applicant has access to all of the relevant records which exist. The question of whether or not the information held is sufficient to show the SWAO’s handling of the notice of appeal is not a matter to be considered by this Office.
In this case, the applicant has presented no evidence to support her view that the SWAO holds further relevant records. In the circumstances, having regard to the SWAO’s explanation of the records that have been released to date and of the searches it undertook to look for additional relevant records, I am satisfied that all reasonable steps have now been taken by the SWAO to search for further records. I find, therefore, that the SWAO was justified in refusing the request for additional relevant records under section 15(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the SWAO’s decision to refuse, under section 15(1)(a) of the Act, the applicant's requests for additional records relating to her appeal with the SWAO on the ground that no further relevant records, apart from those already released, exist or can be found.
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.