Whether the SWAO was justified in refusing access to records relating to the applicant’s State Non Contributory Pension application under section 15(1)(i) of the FOI Act, on the ground that the records requested have previously been provided to her

10 November 2020

Background

This case is the second of two reviews that have their background in a dispute the applicant and her husband have with the Department of Employment Affairs and Social Protection (the Department) over the Department’s assessment of the couple’s State Pension Non Contributory (SPNC) entitlements.

The applicant’s husband is in receipt of an SPNC and had been in receipt of an increase for a qualified adult payment in respect of the applicant. On turning 66, the applicant applied for an SPNC in her own right, at which point the means of the couple were reviewed in order to assess the applicant’s entitlements.

According to the Department, the Deciding Officer concluded that the applicant had failed to declare income in her SPNC application. Furthermore, the Department stated that the applicant’s husband failed to disclose his receipt of a compensation settlement, or details of how the settlement was disposed of. Failure by the couple to comply with numerous requests for information sought on their means for SPNC assessment purposes resulted in the disallowance of the applicant’s application.

In the first review (OIC-92252-V6Y7B9), I considered the Department’s refusal to release to the applicant’s husband any additional records relating to the applications for SPNC made by him or the applicant on the ground that it had already released all of the records it held on the matter. I found that the Department was justified in refusing access to any additional records on the ground that no further relevant records exist or could be found apart from those already released.

According to the Department, the applicant and her husband have made 13 FOI requests to the Department for records relating to the matter. The Department said it has also released information to the couple outside of FOI. In the course of this review, the applicant’s husband engaged with this Office on her behalf. Where this has occurred, I will refer to any correspondence as being from the applicant.

On 17 October 2019, the applicant and her husband made a request to their local Social Services Welfare Office for all records relating to her SPNC application. In particular, they sought all records relating to interactions or correspondence between the applicant, her husband and two named Social Welfare Inspectors.

As the applicant had lodged an appeal in respect of the Department’s decision on her SPNC application, and the SWAO held the relevant file, the request was forwarded to the SWAO for a decision. On 11 November 2019, the SWAO granted the request. It drew the applicant’s attention to a previous FOI request made to the Department, in response to which she had been provided with her full SPNC file. The SWAO reissued the full file and highlighted specific records relating to the two named Social Welfare Inspectors.

On 27 November 2019, the applicant sought an internal review of that decision, following which the SWAO affirmed its original decision. It stated that it had already provided all records coming within the scope of the request.

During the course of this review, this Office sought submissions from the SWAO in relation to records provided to the applicant. Ms Whelan of this Office provided a summary of those submissions to the applicant, and invited her to make further submissions. The applicant made further submissions.

I have now decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and the SWAO as outlined above and to communications between this Office and both the applicant and the SWAO on the matter. I have also had regard to the submissions of the Department in relation to case OIC-92252-V6Y7B9, insofar as they are relevant to this review.

Scope of Review

In essence, the position of the SWAO is that it has provided the applicant with all records it holds coming within the scope of her request. Section 15(1)(i) provides for the refusal of a request where the records sought were already released, and are available to, the requester. Accordingly, this review is concerned solely with the question of whether the SWAO was justified in refusing the applicant's request for records relating to her SPNC application under section 15(1)(i) of the FOI Act. 

Preliminary Matters

Before I address the substantive issues arising, I wish to address a number of preliminary matters.

First, it is important to note that 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.

Second, I note that much of the applicant’s argument is concerned with the manner in which the SWAO and the Department dealt with the substantive issues relating to her and her husband’s dispute. As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, while it is clear that the applicant is dissatisfied with the manner in which the Department dealt with the substantive issues of the couple’s case, this Office has no role in examining the appropriateness of those actions or any decisions taken on foot of those actions.

Analysis and Findings

Section 15(1)(i)
As summarised above, section 15(1)(i) provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester, and the records are available to the requester concerned.

In submissions to this Office on the earlier review in case OIC-92252-V6Y7B9, the Department outlined its dealings with the applicant and her husband. It explained that when processing a previous FOI request, which is not the subject of this review, it contacted the applicant’s husband by telephone to ascertain what records from the applicant’s SPNC file were outstanding, as according to its records, the entire file had been provided to the applicant outside of FOI. As a result of this conversation, on 25 September 2019, the Department released additional correspondence to the applicant. The Department stated that at this stage, the applicant’s full SPNC file had been provided to her.

The Department further explained that as of 3 February 2020, it had also released the full SPNC file for the applicant’s husband’s, including the applicant’s personal information contained on that file, which had previously been redacted under section 37 of the FOI Act, where the Department had not yet been authorised to release such information by the applicant.

In submissions to this Office received in the course of this review, the SWAO provided a schedule of records, comprising the applicant’s full SPNC file, released in response to an FOI request received by the Department on 18 October 2019. As outlined above, the SWAO reissued the applicant’s full file in response to the applicant’s request and highlighted specific records relating to the two named Social Welfare Inspectors.

The SWAO explained that the applicant’s records are held on a hard copy file which the SWAO received from the Department when the applicant lodged an appeal of the Department’s decision on her SPNC application. The SWAO stated that the file was assigned to an Appeals Officer on 4 December 2019, and any correspondence received from the applicant and replies from the Appeals Officer were put on the hard copy file. The SWAO stated that all records held by it have been released to the applicant.

In submissions to this Office, the applicant maintained that she had never been provided with her SPNC file. In a telephone conversation with Ms Whelan of this Office on 8 September 2020, the applicant’s husband stated that he had retained all records which had provided to him.

Having reviewed the SWAO and the Department’s submissions, and the details of the records already provided to the applicant, it is clear that the applicant’s full SPNC file has been provided to her, by the Department outside of FOI, and by the SWAO in response to her request. Furthermore, it is clear that any information falling under the scope of her request held on her husband’s SPNC file are also available to her. I am satisfied, based on the explanations of the SWAO and the Department, that all records falling under the scope of the applicant’s request would be held on these files.

I find, therefore, that the Department was justified in refusing access to the records sought under section 15(1)(i) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the SWAO’s decision to refuse the applicant's request under section 15(1)(i) 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