Note: The Commissioner's decision to discontinue the review in this case was the subject of a High Court Appeal - the judgment, issued by the High Court on 11 April 2003, is availablehere.Request for information under section 18 of the FOI Act - whether a valid section 18 request was made - whether application for review relates to a decision the Information Commissioner can review - section 34(1)

Case Summary

Facts

The requester, by letter dated 15 September 1999, sought from the Department of Justice, Equality & Law Reform a reply, in accordance with the provisions of section 18 of the FOI Act, to his previous letters of 14 July and 11 August, 1999 concerning a number of matters. While the Department treated the requester's letter of 15 September 1999 as a section 18 request, it decided that the requester was not entitled to a statement of reasons. The requester applied for a review of the Department's decision

Decision

The requester had been in correspondence with the Department concerning a previous FOI application he made for access to records relating to the PULSE system. The Department's decision in respect of that request issued by letter dated 30 April, 1999. The requester wrote to the Department on 11 May, 1999 to advise that he intended to appeal the Department's refusal to grant access to certain records and that in order to do so, he required further information. Further correspondence between the Department and the requester ensued resulting in his letter of 14 July, 1999 when he explained that his reason for requiring the information sought was to establish certain facts. He also sought further information in that letter. In a further letter of 11 August, 1999 the requester clarified the nature of the information he was seeking. By letter dated 15 September 1999, the requester sought a reply to his previous letters of 14 July, 1999 and 11 August, 1999 in accordance with the provisions of section 18 of the FOI Act.

The Commissioner found that the requester did not identify, in his letter of 15 September 1999, a specific act of the Department for which a statement of reasons was required and that he did not indicate that he sought such a statement. He found that the letter was, in fact, a request that the Department reply to his letters of 14 July, 1999 and 11 August, 1999. He further found that the requester's letters of 14 July, 1999 and 11 August, 1999 were requests for information to enable him to appeal the Department's decision on his request for access to records.

The Commissioner found that the requester had not made a valid section 18 request and that the Department's decision, therefore, was not a decision that he could review. The Commissioner decided to discontinue the review in accordance with the provisions of section 34(9)(a)(ii) of the FOI Act as he found that the application for review did not relate to a decision specified in section 34(1) of the FOI Act.

Date of Decision: 11.03.2002

Our Reference: 000028

11.03.2002

Mr Killilea

Dear Mr Killilea

I refer to your application under the Freedom of Information Act, 1997 ("the FOI Act") for a review of the decision of the Department of Justice, Equality & Law Reform ("the Department") relating to a request made by you in accordance with section 18 of the FOI Act. I wish to apologise at the outset for the delay which has arisen in dealing with your application which was due to the large number of reviews pending before me.

Background

In carrying out my review in this case, I have had regard to

• your letters to the Department dated 11 May, 1999, 25 May, 1999, 17 June, 1999, 14 July, 1999, 11 August, 1999, 15 September, 1999 and 16 November, 1999
• The Department's letters to you dated 21 May, 1999, 4 June, 1999, 9 July, 1999, 4 August, 1999, 13 December, 1999 and 17 December, 1999
• your application for review to my Office dated 14 January, 2000 and
• your letter to my Office dated 22 January, 2001 which you submitted following Mr Rafferty's letter dated 17 January, 2001 setting out his preliminary views in respect of your application for review.

It appears that you are disputing the ownership of certain intellectual property rights related to the PULSE project on the ground that the system is identical, in your view, to an information system proposed by you to the Garda Síochána Suggestion Committee in May, 1993. As Mr Rafferty explained to you in his letter of 17 January, 2001, I have no role in adjudicating on such a matter. To be entitled to a statement of reasons in accordance with section 18, an applicant must have been affected by an act of the public body and must have a material interest in a matter affected by that act. Section 18(5) provides that a person has such a material interest if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.

The Department is clearly of the view that it owns the intellectual property rights pertaining to PULSE. I note, for example, the Department's comments that the contract relating to the detailed design, build and pilot testing of PULSE systems states that copyright and any and all intellectual property rights in relation to new software products and other deliverables vest in and are owned by An Garda Síochána. The Department might argue, therefore, that the withholding of a benefit in this case, namely the refusal to acknowledge your ownership of the intellectual property rights relating to PULSE, would also be withheld from everyone else in the world given the Department's claim of where ownership lies unless you are in a position to show that you do, in fact, own such rights. However, as I have indicated above, this is not a matter that I, as Information Commissioner can adjudicate upon.

Scope of Review

Findings

As you are aware, section 18 of the FOI Act provides that a person who is affected by an act of a public body and has a material interest in a matter affected by the act or to which it relates is entitled to a statement of reasons for the act and of any findings on any material issues of fact made for the purposes of that act. I note that Mr Rafferty advised you in his letter of 17 January, 2001 that he was not clear as to the act of the Department in respect of which you are seeking a statement of reasons. Having carefully examined your correspondence with the Department, I can understand why he came to this view. Furthermore, it seems to me that the Department was unclear as to the particular act of the Department for which a statement of reasons was sought, notwithstanding the fact that it decided to refuse your request on the ground that you are not a person who is affected by an act of the body. Having examined the Department's decision on internal review, which issued by letter dated 17 December, 1999, it appears that the Department considered the act to be the decision to award the contract for the detailed design, build and pilot testing of PULSE systems to Andersen Consulting in 1996.

You first referred to section 18(1) of the FOI Act in your letter of 15 September, 1999. This is the first indication that the Department had that you were making a section 18 request. In that letter you requested a reply to your letters of 14 July and 11 August, 1999 concerning two issues, viz. (i) ownership of intellectual property rights and (ii) the process which led to awarding of contracts. You requested a reply in accordance with section 18, paying careful attention to, among other things, the issues raised by you in your correspondence of 14 July and 11 August. It is clear to me that you did not identify, in your letter of 15 September, a specific act of the Department for which a statement of reasons was required, nor did you indicate that a statement of reasons was required. Rather, this letter was a request that the Department reply to two previous letters. This, of itself, is not a valid section 18 request.

I have also carefully examined your letters of 14 July and 11 August, 1999, and the correspondence which preceded both letters, to determine if the Department could have accepted one of those earlier letters as containing a valid section 18 request. The correspondence at issue in this review stemmed from your correspondence with the Department in respect of another FOI application which you made for access to records held by the Department in relation to the PULSE project. The Department's decision in respect of that request issued by letter dated 30 April, 1999. In response, you indicated in your letter of 11 May, 1999 that you intended to appeal the Department's refusal to grant access to certain records and you advised that in order to do so, you required, among other things, information on (i) ownership of the intellectual property rights pertaining to PULSE and (ii) the process which led to the awarding of a contract to Andersen Consulting. This was clearly a request for information to enable you to appeal the Department's decision on your request for access to records.

Further correspondence between the Department and yourself ensued resulting in your letter of 14 July, 1999 when you explained that your reason for requiring the information sought was to establish "how Andersen Consulting came to be in possession of the Information System". You also asked the Department to make whatever enquiries were necessary to clearly establish all the facts pertaining to the ownership of the system and to communicate that information to you. Again, this letter is clearly a request for information as opposed to a request for a statement of reasons for an act of the Department.

In your letter of 11 August, 1999 you clarified the purpose of your request for information, viz. "what I am investigating here is the theft of my property". You alleged that "some other person has appropriated my property" and that such information, i.e. the identity of that person, "is in the possession of or available to the Department". You requested this information. Again, this is clearly a request for information. You letter does not identify a specific act of the Department for which a statement of reasons was required, nor did you indicate that a statement of reasons was required.

I further note that it was only following your letter of 16 November, 1999 when you sought to have an internal review of the refusal of your request under section 18 carried out that the Department decided that your letter of 15 September, 1999 constituted a request under section 18 and it decided to carry out an internal review on the basis that a decision had not been reached on your request within the time limits specified in the FOI Act. As I have indicated above, it appears that the Department considered that the act for which a statement of reasons was required was the decision to award the contract for the detailed design, build and pilot testing of PULSE systems to Andersen Consulting in 1996. I believe that the Department was mistaken in coming to such a conclusion and, in fact, your letter of 22 January, 2001, confirms my belief. While I can understand the confusion which existed in view of the substantial amount of correspondence which issued in this case, it seems to me that the Department should have consulted with you in order to clarify the exact nature of your request. Nevertheless, it did not do so and given that you did not, in my view, make a valid section 18 request, I find that I am not in a position to review the Department's decision

Section 34(9)(a)(ii) of the FOI Act provides that I may discontinue a review where I am of the opinion that the application for review does not relate to a decision specified in section 34(1) which includes a decision to refuse an application under section 18. In your letter of 22 January, 2001 you explained that the act for which a statement of reasons is sought is "the refusal without just cause to acknowledge my authorship of the communication system now being implemented as PULSE; which act is preventing me from protecting my intellectual property rights". However, as you did not request such a statement from the Department, I find that your application for review does not relate to a decision specified in section 34(1). Accordingly, I have discontinued this review

Finally, I would like to explain that I have also considered whether the Department should have treated your letters of 14 July, 11 August and 15 September, 1999 as a request in accordance with section 7 of the Act. The FOI Act confers a general right of access to records rather than a general right of access to information. This means that if the information sought is not contained in a record, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the relevant information as it does not oblige public bodies to create or compile information which does not exist. Given the specific nature of your correspondence with the Department and the particular circumstances, I am satisfied that it could not reasonably have been expected to treat your letters as a request for access to records.

Decision

Without prejudice to your claim that you own the rights, I have decided to discontinue this review in accordance with the provisions of section 34(9)(a)(ii) of the FOI Act on the basis that your application for review does not relate to a decision which I may review, as specified in section 34(1) of the Act. I have detailed the basis for my decision in my findings which follow.

Yours sincerely

Information Commissioner