Whether the Department was justified in partially refusing access to records relating to the applicant’s claim for social welfare payments

14 December 2021

Background

In a request dated 15 April 2021, the applicant sought access to the evidence the Department had that a named third party was residing at a specified address from a specified date. In a decision dated 12 May 2021, the Department refused the request under sections 30(1)(a) and 32(1)(a) of the FOI Act.

On 19 May 2021, the applicant sought an internal review of the Department’s decision, following which the Department affirmed its original decision. On 17 June 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 correspondence between the applicant and the Department and to the submissions made by the Department. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In both its original decision and its internal review decision, the Department indicated that was withholding access to the records sought in their entirety. No schedule of records was provided to the applicant. Subsequently, upon the commencement of this review, the Department provided this Office with two schedules of withheld records, relating to two separate allowances.

However, in its subsequent submissions to this Office, the Department clarified that the applicant’s request related specifically to records associated with an investigation of her ongoing entitlement and, as such, that a number of the records included on the original schedules provided to this Office were not relevant to the request, including decision letters the applicant had previously received from the Department. The Department went on to identify the specific records that should have been excluded from the schedule.

Accordingly, my review in this case is concerned solely with the question of whether the Department was justified, under sections 30(1)(a) and 32(1)(a) of the FOI Act, in refusing access to the records it has identified on the schedules of records provided (Carer’s Allowance records 9, 10, and 15 to 76 and Domiciliary Care Allowance records 6 and 7) as falling with the scope of the applicant’s request for access to the evidence the Department had that a named third party was residing at a specified address from a specified date.

Analysis and Findings

Section 30(1)(a)

Section 30(1)(a) of the FOI Act provides that an FOI body may refuse to grant an FOI request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

Article 30(1)(a) is a harm-based provision. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, the release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).

In its submissions to this Office, the Department said that the applicant’s case was the subject of an ongoing investigation by its Special Investigation Unit (SIU). It said the function of the SIU was to investigate and detect social welfare fraud. It said this function was undertaken through a wide range of control activities and projects, one of which was the review of certain scheme applications where there had been suspected fraud. It said SIU investigations were primarily concerned with the investigation of possible fraud and consisted of gathering evidence through engagement with the claimant and from other sources. Information from other sources includes anonymous reports, third party statements, information from the Department’s own records and from other Government Departments and other parties.

The Department added that in this case, the records at issue constituted the investigation file of an SIU officer who was currently continuing a review of the applicant’s Carer’s Allowance (CA) and Domiciliary Care Allowance (DCA) claims entitlement and examining whether further proceedings may be warranted. It said this investigation was ongoing and had not yet been concluded. It said it had not reached the stage where a determination of fraud or likelihood of prosecution could be established.

The Department argued that it was reasonable to expect that the release of evidential records in advance of an investigation being completed could likely prejudice the investigation (and any consequent criminal investigation) by prematurely disclosing information which the officer was not yet in a position to put to the claimant under caution, or seek direction from the Director of Public Prosecution or the Chief State Solicitor in relation to possible offences that may have been committed. It said that while a decision had been made to stop payment of CA and DCA in this case, a determination had not been made on whether to proceed with further action. It argued that if the records requested by the applicant were released before the investigation was complete, it could possibly prejudice the investigation and impede completion of the investigation.

The Department argued that the harm in this case was two-fold; prejudice of the particular ongoing investigation and prejudice to the enforcement of, compliance with or administration of Social Welfare legislation. It argued that if the records contained in the investigation file were to be released before an investigation was complete, then it would become public knowledge how an SIU officer conducted an investigation, including the method and approach taken to gathering evidence where they commenced an investigation and the different contacts and requests for information sought. It said this could have severe repercussions for the Department’s control and prevention of abuse and fraud and implementation of the legislation as enacted by the Oireachtas. It argued that it could prejudice the effectiveness of any further similar investigations by making people aware of the approach taken by an officer in investigating or reviewing a suspected fraudulent claim. It further argued that it could also prejudice the procedures and method used to conduct such an investigation, including how the Department contacted and obtained65 information from other agencies and bodies such as the Garda National Immigration Bureau (GNIB) and the Revenue Commissioners. It argued that if the Department was to be instructed to release such records, then its ability to carry out investigations would be considerably undermined.

With reference to the specific investigation at issue in this case, the Department argued that if the documents contained in the investigation file were to be released in full, it would enable the person who is the subject of the investigation to make all efforts to obstruct the investigation process and to amend/destroy any additional evidence that the SIU officer was seeking. It said that, in cases such as this one, the investigating officer might present this information to the subject of the investigation at some point, and that if the records were to be released before the review investigation was complete then this would prejudice the applicant’s response to any further questions and the need for the investigating officer to pose those question under legal caution.

As a general proposition, I accept that the premature release of certain types of information could reasonably be expected to prejudice the effectiveness of investigations and the methods employed for conducting such investigations. Examples of such information would include information that would;

• facilitate the amendment, destruction, or fabrication of evidence,
• allow for evasive measures to be taken in advance of evidence gathering, or
• allow persons under investigation to prepare fabricated responses to expected enquires.

I also accept that the prejudice would be to both ongoing and future investigations. For example, if the Department was to disclose details of a particular line of enquiry it followed when conducting a particular investigation of possible fraud, and such knowledge facilitated fraudulent claimants in taking measures that would undermine the effectiveness of that line of enquiry in subsequent investigations, then it seems to me that the Department would be justified in refusing to such information under section 30(1)(a). On the other hand, if the information was such that it would be of obvious interest to the Department when carrying out investigations and was such that prior knowledge of same could not reasonably be expected to facilitate some form of evasive action, then it seems to me that section 30(1)(a) would, in all likelihood, not apply.

Having examined the records at issue in this case, it seems to me that the Department has sought to withhold all of the documents based solely on the fact that they form part of the investigation file, regardless of their specific contents. As I have explained above, a claim for exemption under section 30(1)(a) must be made in light of the contents of each particular record.

Having carefully examined the contents of each of the records, I note in the first instance that a number of the documents therein were provided by or to the applicant or are standard records concerning the consideration of her allowance applications. In my view, there is nothing in the contents of those documents that could reasonably be expected to give rise to the harms identified by the Department. They disclose nothing about the ongoing investigation that is not already known to the applicant, nor do they disclose, in my view, details of an investigation that would facilitate evasive measures to avoid detection or that might prejudice an investigation or the methods employed for such an investigation. In the first instance, therefore, I find that section 30(1)(a) does not apply to CA Records 15 to 27, 30 to 38, 49, 50, 59 to 69, 72, or 75.

In relation to the remainder of the records, I accept as a general proposition that CA Records 9 to 10, 27 to 31, 37 to 60, 62 to 65, 68, 70 to 71 and 73 to 76 are of a type that, in some circumstances, might reasonably be expected to give rise to the harms identified by the Department. In relation to the DCA Records, I note that DCA Record 6 is identical to CA Record 9, and DCA Record 7 is identical to CA Record 10. As such I accept that DCA Records 6 and 7 are also of a type that, in some circumstances, could reasonably be expected to result in the harms identified by the Department.  For example, in circumstances where the Department had not yet showed its investigative hand to the party being investigated, for example by putting to that person the evidence gleaned by the investigation, I would accept that the release of records of the type outlined above could undermine the specific investigation. As a general proposition, the Department should not be required to show its hand at the moment it is requested to do so by the party being investigated (eg. by way of an FOI request).

However, on the specific facts of the matter before me, I consider that the prospect of the applicant being able to take steps to undermine the investigation on the basis of the information contained in any of the records is extremely remote. This is so in circumstances where, in the case of this specific investigation, the Department has already released to the applicant a significant amount of information regarding its inquiries. In particular, by way of correspondence dated 31 December 2020 (CA Record 38 in the Schedule of Records) the Department issued the applicant with a so-called “Natural Justice” letter, that set out in detail the evidence it had gathered against her in the course of its investigation, and offered her the right of response. While this letter did not explicitly detail the sources of the evidence, the majority of such sources would appear to essentially be self-evident. Even where this is not the case, the fact that the evidence gleaned from those sources has now been put to the applicant – and, effectively, into the public domain – by the Department means that I cannot envisage a mechanism by which the further release of the records, which contain information as to the sources of the Department’s evidence against the applicant, would enable her, at this stage, to take any steps that could frustrate the Department’s investigation.

In relation to the Department’s argument that the release of the records could prejudice the effectiveness of any further similar investigations by making people aware of the approach taken by an officer in investigating or reviewing a suspected fraudulent claim, again I find in the circumstances that this argument cannot be sustained. The records do identify a number of approaches taken by the Department to gathering information, and to various sources from which it obtained evidence in the course of this investigation. However, I consider in the first instance that this information is essentially public knowledge. As outlined above, the Department itself has effectively placed in the public domain a substantial amount of the evidence it has complied in the course of this investigation, by way of the “Natural Justice” letter of 30 December 2020. This letter sets out various types of evidence accrued by the Department against the applicant, related to, for example, residency and property. It is not clear to me that, even if a hypothetical future fraudulent welfare claimant sought to utilise the information contained in the records to undermine any potential investigation carried out in respect of their claim, such an individual would be in a position to use that information to take evasive steps that would be effective in avoiding detection or that might prejudice an investigation or the methods employed for such an investigation.

I further note that the powers of the SIU Inspectors to require information and engage with various other departments and bodies is clearly set out in the relevant legislation, and specifically in sections 250 and 261 of the Social Welfare Consolidation Act 2005, as amended. Under these provisions, Inspectors are entitled to require the provision of documentation to assist in their investigations, and to obtain information from other government departments. In those circumstances, while a hypothetical further fraudulent welfare claimant might seek to use the information contained in the records to undermine any potential investigation, it is not clear to me that they would be able to take any effective evasive steps regarding questions over, for example, their residency or ownership of property, given that the Department is entitled under statute to make inquiries with the relevant government departments in this regard.

On the basis of the above analysis, I find that section 30(1)(a) does not apply to the records withheld by the Department. In these circumstances, it is not necessary for me to consider the public interest test provided by section 30(2) of the Act.

Section 32(1)(a)
Section 32(1)(a)(i) provides that an FOI body may refuse to grant access to records where to release same would prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters. Section 32(1)(a)(ii) provides that the body may refuse to grant access where such access would prejudice or impair the enforcement of, compliance with or administration of any law.

An FOI body seeking to rely on section 32(1)(a) of the Act should show how the harm envisaged could reasonably be expected to result from the release of the records. It should also be noted that the exemption provided for by section 32 of the Act is subject to a limited public interest test, which arises only where certain limited circumstances exist (subsection 3).

In its submissions to this Office in relation to the applicability of sections 32(1)(a)(i) and (ii), the Department argued that until its investigation in this case was complete, there was a probability that the ongoing investigation could lead to prosecution of offences under the Social Welfare Consolidation Act 2005 or under the Criminal Justice Theft and Fraud Act 2001. In particular, in the case of the applicant, the Department notified this Office of certain information in its possession that it considered relevant in this regard (I am constrained by section 25(3) of the FOI Act, which requires this Office to take all reasonable precautions to prevent the disclosure to the public or to a party to a review of information contained in an exempt record, in the extent to which I can discuss this information; it must suffice for me to state that I am satisfied as to its relevance in a discussion of the applicability of section 32(1) of the Act).

The Department further argued that it was reasonable to assert that to release evidence to the applicant while an investigation was ongoing would weaken its investigative hand before all evidence is processed and before evidence can be put to the applicant and a decision reached as to how to proceed. In this case, it submitted that to provide to the applicant certain information regarding its investigation would be to impair and prejudice the lawful procedures for investigating offences and allow the applicant to draw inferences which might otherwise not exist. The Department stated that to give prior access would very likely be to the detriment of the interview process by providing an opportunity to anticipate and prepare responses to questions and allegations before they were introduced by the interviewing officer or to evade questions or the process completely.

In relation to section 32 of the FOI Act as a whole, the Department indicated that it did not wish to suggest that a prosecution would definitely arise in this case, adding that the investigation would have to be finalised before considering such an action. Indeed, the Department stated that it may be that the outcome of the investigation may result in no such further action. By raising the exemptions under section 32, the Department argued that its aim was to protect the investigative process.

With the above arguments of the Department in mind, I have examined the records at issue in order to determine whether the exemptions provided for by section 32(1)(a)(i) and (ii), and section 32(2) of the Act, apply in respect of each document.

In relation to the applicability of section 32(1)(a)(i), this Office has previously held that as a general proposition, an investigator must be allowed a fair degree of latitude, subject to the need for fair procedures, to decide when information already in his or her possession should be made available to a party which is the subject of the investigation. This Office has further stated that, if a party subject to investigation by an FOI body has a right to be fully informed at all times of the state of knowledge of the investigating authority, then it would appear to be inevitable that this would impair the investigation of offences. The timing or stage of the investigation of an offence is also a relevant consideration. This Office has previously expressed the view that, where an investigation is still ongoing, a prosecution has not commenced and there is a strong possibility that a criminal prosecution will result, the arguments in favour of release of relevant records are weak and remain weak until such time as the investigation has been completed and a prosecution has been concluded or a decision has been taken not to institute a prosecution.

All of the above being said, it does not appear to me that the release of the records at issue could reasonably be expected to give rise to the harms identified in section 32(1)(a)(i). As with section 30, it seems to me that the Department has sought to assert the exemption provided for in section 32(1)(a)(i) in respect of the investigation records as a class, regardless of their specific contents. I do not consider that, on the specific facts of this case, the release of the records could reasonably be expected to give rise to the hams identified by the Department. My analysis above in the context of the harms identified by the Department in its submissions regarding the applicability of section 30(1)(a) refers in this regard.

On the grounds outlined above, I find that section 32(1)(a)(i) does not apply to the records. I make this finding in circumstances where I consider that the Department has already substantially released the evidence contained in the records, by way of the “Natural Justice” letter, and further that, even if a hypothetical future fraudulent welfare claimant sought to utilise the information contained in the records to undermine any potential investigation carried out in respect of their claim, such an individual would not be in a position to use that information to take evasive steps that would be effective in prejudicing or impairing the prevention, detection or investigation of any relevant offences, or frustrating their the apprehension or prosecution, or undermining the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters.

In relation to the applicability of section 32(1)(a)(ii) of the Act, the question at issue is whether the release of the records could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. For the same reasons as I have outlined in respect of the applicability of section 32(1)(a)(i), I find that section 32(1)(a)(ii) does not apply.

Conclusion

While I have found that sections 30(1)(a) and 32(1)(a) do not apply to the records at issue, I find that I am not in a position to simply direct the release of all of the records as I note that a number of them contain third party personal information, which is protected, subject to certain exceptions, under section 37 of the Act. It is not a matter for this Office to act as a first instance decision maker in respect of the applicability of section 37 to the records at issue.

Accordingly, while I annul the decision of the Department to refuse access to those records under sections 30 and 32, I consider that the most appropriate course of action is to remit the matter back to the Department to consider afresh the applicant’s request, having regard to the provisions of section 37. If the applicant is dissatisfied with the Department’s fresh decision on those records, she will have a right to apply for an internal review of that decision and ultimately, to apply to this Office for a fresh review if necessary. I appreciate that this results in further delays for the applicant but I am simply not in a position to direct the release of the records without having regard to the privacy rights of the various third parties. If the applicant deems it necessary to apply to this Office for a further review following the Department’s fresh consideration of the request, the review will be prioritised.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department to refuse access, under sections 30 and 32 of the Act, to Carer’s Allowance Records 9, 10, and 15 to 76 and Domiciliary Care Allowance records 6 and 7. I direct the Department to consider afresh the applicant’s request having regard to the provisions of section 37 of the 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