Ms X and Department of Social Protection

CourtInformation Commission
JudgeSenior Investigator
Judgment Date14 December 2021
Case OutcomeThe Senior Investigator annulled the decision of the Department to refuse access to certain records under sections 30 and 32. He directed the Department to consider afresh the applicant's request having regard to the provisions of section 37 of the Act.
RespondentDepartment of Social Protection
Record NumberOIC-109084-D4N8Q0
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...

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