Whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to correspondence the applicant considers to have been sent to the Department about her on the ground that no such correspondence exists

14 July 2021

Background

All references to communications with the applicant in this decision should be taken to include communications with her solicitor. On 3 March 2021, the applicant submitted a request to the Department for all records in relation to her file and the “unauthorised” termination of her contributory pension entitlements in or around September 2020. In particular, she sought a copy of all third-party correspondence about her that was sent to the Department from 1 September 2020. On 24 March 2021, the Department granted the request in part. It redacted certain information from a number of the records under section 37 (1) of the Act. 

The applicant sought an internal review of that decision on 30 March 2021, wherein she referred specifically to third-party correspondence that she maintained was sent about her, and to any internal records that preceded an internal memo that was released on foot of the request. Following internal review, the Department varied its original decision. It refused access to the third-party correspondence sought by the applicant under section 15(1)(a) of the FOI Act on the ground that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. On 27 April 2021, the applicant sought a review by this Office of the Department’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the Department and the applicant, and to the correspondence between the Department and the applicant as outlined above. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Department was justified in refusing access, under section 15(1)(a) of the FOI Act, to correspondence the applicant considers to have been sent to the Department about her on the ground that no such correspondence exists. The applicant confirmed to this Office that she is not seeking a review of the redaction of third-party details in the records that were released to her.

Preliminary Matters

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

It is also important to note at the outset that 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).

Analysis and Findings

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 must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The role of this Office is confined to determining whether the FOI body has carried out all reasonable steps to locate the records. The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are not created, are lost or simply cannot be found. Furthermore, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.

In her application to this Office, the applicant alleged that her pension was unlawfully stopped on foot of a letter to the Department in or around August/September 2020. She alleged that the Department relied on that letter without making any enquiries as to the veracity of same and stopped her pension.

The applicant will note that one of the records released to her comprised an internal memo that a Social Welfare Inspector (SWI) sent to the section that deals with the applicant’s pension on 22 August 2020. It is apparent from the contents of that record that the SWI sought to confirm the applicant’s current address on foot of a Carer’s enquiry. The memo states that the SWI’s enquiries indicated to him that the applicant was no longer residing at her stated address. The Department explained that following receipt of that memo, the relevant section attempted to contact the applicant and stopped her pension payment when it could not contact her.

The Department was asked to provide a detailed account of the searches that it undertook further to the applicant’s request, as well as a description of its policies and procedures around record management and storage insofar as they would apply to the record in question.  It described carrying out a full search of all electronic files using the applicant’s name and her PPSN, a search of the Widow’s Contributory Pension filing area and a search of the applicant’s paper file.  No third-party correspondence was found.

The Department also referred to a circular which sets out the processes and arrangements for dealing with third-party correspondence, “Circular 35/18 – Revised arrangements for managing allegations of fraud or wrongful claiming”. In summary, the Department described the procedures as follows:

• When third-party correspondence (including confidential or anonymous correspondence) is received in relation to a customer, it is sent to the Control Division to investigate. It is never recorded on the customer’s account so as not to influence a Deciding Officer’s decision;
• If the correspondence leads to an investigation, the report submitted to the Deciding Officer should not contain any reference to the third-party correspondence and the correspondence should be removed from the file before being returned to the Deciding Officer. When an investigation is complete, the correspondence should be destroyed (if it has not already been destroyed);
• Under the rules of natural justice, a person is entitled to obtain a copy of all relevant documentation on file that was relied upon by the Deciding Officer in making a decision, in order to allow the person to make his/her case to the Deciding Officer or to prepare an appeal;
• Third-party correspondence is therefore not available for disclosure to a customer as such material has not and could not have had a direct bearing on the decision arrived at by the Deciding Officer or Appeals Officer as it is not present on the customer’s file, whether electronic or physical.

It is the Department’s position that the third-party correspondence sought by the applicant is not held by the Department. In accordance with the procedures set out above, if the record did exist at one point, it would not have been recorded on the applicant’s file and would have been destroyed by Control Division once any investigation was complete.

While it appears, on balance, unlikely that the third-party correspondence sought by the applicant exists, it is notable that the Department’s decision-maker did not consult with the Control Division to establish whether such correspondence had been referred to them and whether or not this led to an investigation. The Investigator sought clarification from the Department on this, and it confirmed that it had not checked with the Control Division.

In these circumstances, I cannot conclude that the Department has taken all reasonable steps to locate the record sought. I therefore consider that the appropriate course of action is to annul the Department’s decision to refuse the applicant’s request under section 15(1)(a) of the Act, the effect of which is that the Department must consider the applicant’s request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Department’s decision.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Department to refuse access to the records sought under section 15(1)(a) of the FOI Act. I direct the Department to conduct a fresh decision-making process in respect of the applicant’s request.

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