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Case Number: 170025

Whether the Department was justified in refusing the applicant's request for access to further correspondence between her and the Department on the ground that no more records exist or can 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

On 20 October 2016, the applicant made a request to the Department for correspondence relating to her contributory pension for the past seven years. On 2 December 2016, the Department released records relating to the applicant's claims for a transition pension and a contributory pension. Part of one record relating to the applicant's claim for a contributory pension was refused on the ground that it contained third party personal information. In its decision letter, the Department noted that some correspondence submitted to the Department by the applicant may have been destroyed. The Department relied on section 15(1)(a) of the FOI Act in refusing access to these further records on the basis that they no longer exist.

In her request for an internal review of that decision, the applicant refereed to interactions with the Equality Tribunal, whose functions have since been transferred to the Workplace Relations Commission (WRC), and with the Office of the Ombudsman. On 13 January 2016, the Department varied its original decision and released additional correspondence between the applicant and the Pensions Policy Unit. It also released correspondence between the Pensions Unit and the WRC and correspondence between the Department and the Office of the Ombudsman, in respect of a complaint made by the applicant. On 15 January 2016, the applicant sought a review by this Office as she was of the view that further correspondence existed and these records had not been released to her.

I note that Ms Lydia Buckley of this Office contacted the applicant on 31 July 2017, and provided her with information about how correspondence is stored in the relevant sections of the Department and with details of the searches undertaken by the Department to locate the correspondence sought. She also informed the application of her view that the Department had taken all reasonable steps to locate the records at issue and it was justified in deciding that no further records exist or be found. The applicant indicated that she requires a formal decision on the matter.

I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Department and the applicant. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

The scope of this review is concerned solely with whether the Department was justified in refusing the applicant's request for further correspondence relating to her contributory pension on the ground that no further records exist or can be found.

Analysis and Findings

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 Commissioner's role in such cases 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. 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 it has taken all reasonable steps to locate the relevant records.

As I have outlined above, Ms Buckley of this Office provided the applicant with details of the searches undertaken to the records sought. She also provided her with an account, supplied by the Department, of how correspondence is processed and stored in the relevant sections of the Department, and while I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In summary, the Department stated that correspondence relating to a claim for a transition or contributory pension are initially dealt with by the State Pension Contributory (SPC) Decision section. Once a decision is made on the claim, any further correspondence in respect of the claim is dealt SPC Correspondence section. The Department stated that in an effort to locate correspondence between the applicant and the Department, staff in the SPC Decision and Correspondence sections conducted manual searches of the hardcopy correspondence held in these sections. An electronic search was also conducted in both sections of relevant email accounts and the office computer system. The Department noted that some correspondence sent by the applicant to the Department in connection with her pension claim may have been destroyed. The Department stated that this was in accordance with the policy of the SPC Correspondence section to confidentially destroy letters received from clients after one year.

The Department also provided details of the searches undertaken by the staff in the Pensions Policy Unit, with which the applicant was also in contact during the relevant period, to locate relevant correspondence. Staff in the Pensions Policy Unit stated that manual and electronic searches were conducted of hardcopy and electronic files, including relevant email accounts.

During the course of this review, the applicant stated that some correspondence was missing from the records released to her by the Department. She stated that she became aware of the missing correspondence after obtaining a copy of the files sent by the Department to the Ombudsman and by the Department to the WRC, in relation to a complaint made by applicant to those bodies. The staff in the SPC Decision and Correspondence sections and the Pensions Policy Unit have stated that all correspondence has been released to the applicant and no items appear to be missing from the records. It is worth noting 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 these records.

Having regard to applicable records management policies and the search details supplied by the Department, I am satisfied that all reasonable steps have been taken to locate the records sought by the applicant. I find, therefore, that the Department was justified in its decision to refuse the request on the ground that no further records exist or can be found, after all reasonable steps have been taken to ascertain their 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

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator