Case number: 180009

13 June 2018

Whether the Department was justified in its decision to refuse access to further records on the applicant's rent file under section 15(1)(a) on the ground that no further relevant records exist or can be found and to withhold certain information under section 37 (1)

Background

On 31 October 2017, the applicant submitted a request to the Department for a copy of her rent file for the period 1 September 2017 to 31 October 2017. On 13 November 2017, the Department issued a decision in which it part granted the request, redacting some information from one of the records released and refusing access to another record under section 37 of the FOI Act. On 28 November 2017, the applicant sought an internal review of that decision, wherein she suggested that further relevant records exist. The Department issued its internal review decision on 15 December 2017 in which it affirmed its original decision. On 16 February 2018, the applicant sought a review by this Office of the Department's decision. 

During the course of the review the Department released three further records to the applicant. As none relate to the applicant's rent file, they are outside the scope of this review. Subsequently, 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. The applicant was invited to make submissions on the matter and has chosen to do so.

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. I have also had regard to the content of the withheld records provided to this Office by the Department for the purposes of this review.

Scope of the Review

This review is concerned with whether the Department was justified in redacting certain information from a record held on the applicant's rent file and refusing access to a second record on the ground that the withheld information comprises personal information relating to a third party and whether it was justified in refusing access to further relevant records on the ground that no further relevant records exist or can be found.

I should note that the applicant has another application for review of the Department's decision regarding an FOI request for, amongst others, her Rent supplement records from the period 1 January 2014 to 12 September 2017. This is an entirely separate review.

Analysis and Findings

Information Withheld
Section 37(1) of the FOI Act provides that a public body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential.

The information withheld in this case relates to the applicant's landlord. I am satisfied that it is personal information relating to that individual and that section 37(1) applies. Section 37 also contains a number of provisions that serve to disapply section 37(1). Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. Section 37(5) provides that access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates.

It has not been argued that releasing the records would benefit the person to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I fail to see how the release of the withheld in formation in this case would serve to enhance the transparency or accountability of the Department. I find, therefore, that the public interest in granting the request does not outweigh, on balance, the public interest in protecting the right of privacy of the individual to whom the information relates. In conclusion, I find that the Department was justified in withholding the information at issue under section 37(1) of the FOI Act.

Do Other Records Exist?
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. 

In submissions to this Office, the Department provided details of the applicable record management policy and details of the searches conducted to locate the records sought by the applicant. As outlined above, Ms Hannon provided the applicant with these details. She also provided her with an account, supplied by the Department, of how correspondence is processed and stored in relevant sections of the Department, and while I do not propose to repeat these details in full here, I confirm that I have had regard to them for the purposes of this review.

In summary, the Department stated that both manual and electronic searches of hardcopy and electronic files were undertaken to locate relevant records. It stated that all relevant computer systems were searched using specific search terms including its recording and payments system using names and PPS numbers. It said there was also a physical search of all relevant areas in the relevant Rent Unit. All relevant individuals were consulted and their records searched. 

In submissions to this Office, the applicant stated that some correspondence was missing from the records released to her by the Department. The applicant highlighted specifically that her payment was suspended on a specific date and that there should be records around this. 

In further submissions to this Office, the Department provided an explanation of what type of records would be created if a payment was suspended. In summary, the Department stated that it is its policy to review all rent supplement claims on a twice yearly basis and explained specifically why there were no further records around the applicant's payment suspension. I note that in emails released to the applicant the Department explained that the applicant's payment was suspended as the Department was still pending documentation for her claim. As the documentation had not been received, the rent supplement was suspended. 

Having regard to the Department's description of the searches undertaken and the explanation provided as to why no further records exist, I am satisfied that the Department has conducted reasonable searches for relevant records and that no such records exist or can be found. I find, therefore, that the Department was justified in refusing the applicant's requests for further records 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 further records on the applicant's file under section 15(1)(a) of the FOI Act and to withheld certain information under section 37 (1) 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