Case number: 170250

Whether the Department was justified in deciding to refuse access to a questionnaire that the applicant returned to the Department in 2014 under section 15(1)(a) on the ground that the record does not exist or cannot 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

The applicant submitted a request to the Department on 23 February 2017 for questionnaires relating to her jobseekers claim for the years 2013, 2014 and 2015 which she completed and returned to the Department. On 27 March 2017, the Department provided the applicant with records held relating to her jobseekers claim. On 30 March 2017, the applicant sought an internal review of the Department's decision. 

On 24 April 2017, the Department provided the applicant with copies of the questionnaires for 2013 and 2015. It informed the applicant that the form for 2014 was "irretrievable in the Dunlaoghaire Local Office". On 26 May 2017, the applicant sought a review by this Office of the Department’s decision in respect of the missing 2014 questionnaire. 

During the course of this review, Ms McCrory of this Office provided the applicant with details of the searches the Department conducted in an effort to locate the relevant record, and outlined her view that the Department had taken all reasonable steps to locate the record. As the applicant has indicated that she requires a formal decision on the matter, I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to refuse the applicant’s request for the 2014 questionnaire under section 15(1)(a) on the ground that this record does not exist or cannot 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 do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role 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/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 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 decision maker concluded that the steps taken to search for records were reasonable.

As stated above, Ms McCrory of this Office has already provided the applicant with details of the searches conducted by the Department in an effort to locate the record at issue. Therefore, while I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision. In summary, the Department conducted a search of all relevant areas of the Local Office where her claim is held and files. It also conducted various searches to account for possible misfiling of the record.

In response to the applicant's assertion that she handed the record into the Local Office and had attended a meeting with a member of staff who had the record in their possession, the staff member in question did not hold a copy of the record, nor could she recall the meeting given the passage of time and given that she meets a number of customers on a daily basis. In essence, the Department's position is that there is no evidence on the applicant's file to confirm that the record was held by it.

The Department further stated that although there is normally a follow-up with a customer that has not returned the questionnaire sought, there is no note of the questionnaire not being returned on file. It stated that it is likely no follow-up was conducted by the Department, which may have been due to a staff shortage at the relevant period of time.

While the applicant is strongly of the view that she did, indeed, return the 2014 questionnaire to the Local Office, the fact remains that the Department cannot locate it. It is important to note that it is open to me to find that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. In such circumstances, it is not reasonable to require a public body to continue searching indefinitely for such records. 

While it is unfortunate that the Department cannot locate the record sought in this case, I am satisfied, having regard to the details of the searches conducted as outlined above, that it has taken all reasonable steps to locate the record. I find, therefore, that the Department was justified in its decision to refuse the applicant's request for access to the record sought on the ground that it does not exist or cannot be found after all reasonable steps have been taken to ascertain its whereabouts. 

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department in this case.

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