Case number: OIC-59074-L1L9H3
18 September 2020
On 9 October 2019, the applicant submitted a request to the Department for all documentation relating to an investigation by the Social Welfare Appeals Office (SWAO) of complaints she had made and that ended in September 2017, to include her application form/letter. She noted that she had asked for this documentation previously in September 2017.
On 5 November 2019, the Department refused the request under section 15(1)(i) on the ground that the records sought had already been released to the applicant. It said the specific records requested were previously part-granted and subsequently released to her on 5 February 2019 as part of request reference 2019-12227. It said that previous to this, all documentation regarding her appeal was released on 3 November 2017.
On 8 November 2019, the applicant sought an internal review of the Department’s decision. She argued that the previous request referred to did not include documentation on the proceedings of her appeals case that ended in September 2017. She said her recent request was “confined to getting a copy of my application to this appeal”. The Department issued its internal review decision on 12 November 2019, wherein it refused the request under both sections 15(1)(i) and 15(1)(g) (frivolous or vexatious request). It said the records have already been released on two separate occasions, once under the previous FOI request and a second time outside of the FOI process on 3 November 2017. On 18 November 2019, the applicant sought a review by this Office of that decision.
During the course of the review, Ms McCrory of this Office noted that the “application” as understood by the applicant in relation to the investigation conducted, might not exist. As such she notified the applicant of her view that section 15(1)(a) of the FOI Act was of more relevance. Ms McCrory provided the applicant with the details of the Department’s explanation as to why no further relevant application existed other than an email dated 7 December 2016, a copy of which it had released to her. She informed the applicant of her view that the Department was justified in refusing access to any further relevant record under section 15(1)(a) of the FOI Act and invited her to make a submission on the matter.
Having regard to the applicant’s further submissions, I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.
This review is concerned solely with whether the Department was justified in refusing the applicant’s request for access to her application to the SWAO for the investigation into her complaints which ended in September 2017 on the ground that no further relevant record exists.
Before I address the substantive issue arising, I would like to make a couple of preliminary comments. Firstly, 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. As such, while the Department originally refused the request under sections 15(1)(i) and 15(1)(g), I am satisfied that it is appropriate to consider the applicability of section 15(1)(a) given the Department’s position that no further relevant record exists. As stated above, the applicant was given an opportunity to make a submission on the applicability of section 15(1)(a).
Secondly, in her correspondence with this Office, the applicant expressed concerns about the manner in which the Department treated her in relation to her welfare entitlements and how her complaints were dealt with. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally.
Finally, 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 (not relevant in this case).
Section 15(1)(a) of the FOI 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. In such cases, the role of this Office 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 I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The general thrust of the applicant’s position is that her application to the SWAO, which resulted in the investigation completed in September 2017, detailed five specific complaints and that a copy of same should exist. In its submissions to this Office, the Department argued, in essence, that no such application was received. It outlined that while it had received numerous emails from the applicant relating to the five complaints, the investigation in question was initiated on foot of the email dated 7 December 2016, wherein the applicant stated “I would now like to ask you to have something like the internal appeals done by your office.” The Department stated that all records held by it, that were related to the five matters identified by the applicant, have been previously released to her and no other records exist or can be found. I have no reason to dispute the Department’s position on the matter. Accordingly, I find that the Department was justified in refusing the applicant’s request for her application under section 15(1)(a) on the ground that no further relevant record exists.
Having carried out a review under section 22(2), I hereby affirm the Department’s refusal of the applicant’s request for her application to the SWAO for the investigation into her complaints that ended in September 2017 under section 15(1)(a) of the FOI Act on the ground that no further relevant record exists.
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.