Case 020353. Whether a public body is required, under section 18 of the Freedom of Information Acts, to provide a statement of reasons for a decision where the Minister in question has absolute discretion to make the decision

Case Summary

Facts

The applicant in this case was refused a statement of reasons, under section 18, for the refusal by the Department of Justice, Equality and Law Reform to grant him a certificate of naturalisation. The Department argued that the FOI Act does not impose a duty on the Minister to give specific reasons for the refusal of a certificate where the Irish Nationality and Citizenship Acts contain no such requirement. It relied on the fact that sections 15 and 16 of the Irish Nationality and Citizenship Act 1956, as amended, provide that a certificate of naturalisation is granted at the absolute discretion of the Minister for Justice, Equality and Law Reform.

Findings

The Commissioner's decision states that there is no inconsistency in the furnishing by the Minister of a statement of reasons pursuant to section 18 of the FOI Act, and the discretion vested in the Minister by the 1956 Act as amended. He pointed to the fact that provision was made at section 18(3) in relation to certain decisions taken under section 17 of the Civil Service Commissioners Act 1956, and to certain decisions taken under the Local Authorities (Officers and Employees) Act, 1926. No such provision was made in respect of the Irish Nationality and Citizenship Act 1956 as amended, and, accordingly decisions under that legislation are affected by section 18(1 unless otherwise excluded by reference to the general provisions of section 18(2).

This decision states clearly that even in cases where a Minister has absolute discretion to make a decision, that decision is covered by the provisions of section 18(1) unless otherwise excluded by reference to the general provisions of section 18(2).

Date of Decision: 22.05.2005

Our Reference: 020353

22.05.2005

Address of Applicant's Solicitor

Dear Mr. XX,

I refer to your application, on behalf of your client Mr. XXX, for a review of the decision of the Department of Justice, Equality & Law Reform (the Department) on his request, under section 18 of the FOI Act, for a statement of reasons for the refusal of his application for a certificate of naturalisation. Your client's original request of 4 December 2001 refers. I apologise for the delay in dealing with this case.

Background

I have now completed my review of the Department's decision which was carried out in accordance with the provisions of the Freedom of Information Acts 1997 and 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended. In carrying out my review I have examined the submissions which you made to this Office dated xx xxx 2002, and xx xxxx 2002. I have had regard to the Department's correspondence with you and to submissions made by the Department to my Office dated 24 July 2002, and 5 November 2002. I have also examined a copy of the file on your client's application for naturalisation which was provided to me by the Department. I have decided to make a formal decision in this case.

Scope of Review

The scope of my review is limited to determining whether the decision of the Department to refuse to provide your client with a statement of reasons, in accordance with Section 18 of the FOI Act, on the basis that the FOI Act does not require the Minister to do so, was justified.

Findings

Section 18 of the FOI Act

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. Section 18 provides that an act of a public body includes a decision of that body and also provides that the head of a public body shall, on application to him or her, cause such a statement to be given to the applicant not later than 4 weeks after receipt of the application. The head of a public body defined in the FOI Act as meaning "(a) in relation to a Department of State, the Minister of the Government having charge of it". A person is deemed to have a material interest in a matter affected by the act of the public body if the consequence of the act is to confer or withhold a benefit from that person without also conferring or withholding that benefit from persons in general. As section 18 of the FOI Act is a mandatory provision, the provision of a statement of reasons is not at the discretion of the public body once entitlement to such a statement is established.

Department's decision and my remit as Information Commissioner

On 1 October 1999, Mr. xxxx, a xxx national who was granted full refugee status, under the Refugee Act 1996, in February 1999, applied for a certificate of naturalisation under the Irish Nationality and Citizenship Acts 1956 and 1986. On 18 October 2001, the Department wrote to him advising him that his application was refused. On 4 December 2001, Mr. xxxx applied to the Department, under the Freedom of Information Act 1997, for a statement of reasons for the decision to refuse to grant him a certificate of naturalisation. In your submission of 1 July 2002, you have drawn to my attention the fact that this application was made in the context of the 1951 UN Convention Relating to the Status of Refugees, as incorporated into Irish Law by the Refugee Act 1996, which provides, at article 34, that "the contracting states shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings". You make the point that the Minister's discretion is not unfettered in relation to applications for naturalisation made by individuals with refugee status. I must advise you that the question of whether or not your client should have been issued with a certificate of naturalisation is not a matter that is within my remit as Information Commissioner. My review, under section 34 of the FOI Act, is confined to whether the Department was correct in its refusal to issue a statement of reasons to Mr. xxxx under section 18 of that Act.

Arguments made by parties to the review

The Department's decision was to refuse a statement of reasons to your client on the basis that there was no obligation on the Minister, under the FOI Act, to provide such a statement. The Department based its decision on the fact that sections 15 and 16 of the Irish Nationality and Citizenship Act 1956, as amended, provide that a certificate of naturalisation is granted at the absolute discretion of the Minister for Justice, Equality and Law Reform. The Department's argument is that the FOI Act does not impose a duty on the Minister to give specific reasons for the refusal of a certificate where the Irish Nationality and Citizenship Acts contain no such requirements. I am advised by the Department that it has received advice from the Office of the Attorney General which supports its position. Furthermore, the Department states that it is advised that, as a general rule of interpretation, a piece of legislation is not taken to amend in a far reaching way other legislation which is "not referred to either specifically or by obvious implication".

You have argued, on behalf of your client, that the Department is a public body for the purposes of the FOI Act and is not exempt from its provisions pursuant to section 18(3). On that basis you claim that your client is entitled to a statement of reasons under section 18.

Entitlement to Statement of Reasons under Section 18 of the FOI Act

The consequence of the decision of the Department to refuse a certificate of naturalisation to Mr xxxx (i.e. the act of the public body) was to deny him a certificate of naturalisation. I take this to be the withholding of a benefit as defined in the FOI Act and find that that benefit was withheld from Mr. xxxx without being withheld from persons in general or a class of persons which is of significant size having regard to all the circumstances. Accordingly, I find that Mr. xxxx is affected by the act of the public body and has a material interest in the matter within the meaning and for the purposes of Section 18.

Section 18(2) of the FOI Act provides that the general duty to give reasons is not to be construed as requiring "the giving to a person of information contained in an exempt record". An "exempt record" is defined in section 2 of the FOI Act to include "a record in relation to which the grant of a request under section 7 would be refused pursuant to Part III or by virtue of section 46". No argument has been made to me by the Department that the provision of a statement of reasons in this case would require the provision of information contained in an exempt record and section 46, which describes records to which the FOI Act does not apply, does not encompass records that might be involved in this request for a statement of reasons.

I will now deal with the legal point on which the Department's decision turns, that is, the question of whether the Minister is required, under the FOI Act, to provide an applicant with a statement of reasons for a decision under the Irish Nationality and Citizenship Act 1956, as amended, where that decision affects the person and the person has a material interest in it.

I am advised that the Department's position, based on the advice of the Attorney General, would appear to be that the maxim generalia specialibus non derogant applies. This maxim literally means that the general shall not derogate from the particular. This principle is used to deal with difficulties which may arise when a statute is enacted whose provisions conflict with those of an earlier statute. The statute containing general subject matter is generally taken not to affect one which applies to a specific matter. The effect is to prevent the unintentional repeal or qualification of a specific provision by a later one which is general in nature. For reasons I set out below, I do not agree that the maxim applies in relation to
the provisions of section 18 of the FOI Acts as alleged in this case.

First of all, where the intention of the legislature is reasonably clear from the terms of a statutory provision it is not necessary to resort to the use of maxims or other aids in order to construe the relevant provision. It is my view that it is clear from the ordinary, literal meaning of the words used in section 18 of the FOI Act, and from the context of the 1997 Act as a whole, that it was intended by the Oireachtas that a requester affected by an act of a public body within the ambit of the Act be given the right, inter alia, to obtain reasons for such act, regardless of whether, as the Department seems to consider, any pre-existing statutory provisions appeared to shut out such a right by vesting in the decision maker an apparently unfettered discretion.

On this latter point, I believe there is a fundamental flaw in the Department’s thinking, which appears to be that there is a necessary inconsistency between the Minister’s broad discretion, as provided for in section 15 of the 1956 Act, and the notion of the giving by the Minister of reasons for a decision taken in exercise of that discretion. In my view, there is no inconsistency at all and the furnishing by the Minister of a statement of reasons pursuant to section 18 of the FOI Act in no way makes any inroad into the discretion vested in the Minister by the 1956 Act as amended.

Furthermore, section 18 does not require the giving to a person of information contained in an exempt record, nor does it require the disclosure of the existence or non-existence of a record if the non-disclosure of its existence or non-existence is required by the Act. The Oireachtas may, therefore, be considered in the FOI Acts to have considered what exemptions and exclusions were required to be provided for and, having done so, to have made provision in the Acts for all necessary protection to be afforded to public bodies vis a vis the disclosure, or the disclosure of the existence or non-existence of, certain records. The Department is a public body for the purposes of the FOI Acts and the Minister’s jurisdiction as regards the granting or non-granting of certificates of naturalisation has been provided for since
1956. Notwithstanding this, the Oireachtas did not appear to have considered it necessary in the FOI Acts to make similar provision to that made in section 18(3) in relation to certain decisions taken under section 17 of the Civil Service Commissioners Act 1956, and to certain decisions taken under the Local Authorities (Officers and Employees) Act, 1926. The express mention of decisions taken under these provisions would appear to indicate, if any further elucidation were required, that, prima facie, all others are affected by section18(1) unless otherwise excluded by reference to the general provisions of section 18(2).

Since the commencement of the FOI Act 1997, there is a statutory basis for an entitlement to a statement of reasons for an act of a public body as provided for in that Act. I consider that section 18, accordingly, alters and puts beyond doubt the position where previously it may have been considered that there was a non-entitlement to reasons. I am strengthened in this belief on the ground that the exercise of the right is circumscribed by the fact that it cannot entail the giving of information or the disclosure of the existence or non-existence of particular records where the Oireachtas has already determined in relation to the Freedom of Information regime that such information might justifiably be withheld.

Whereas, as the Department has pointed out, there may be no obligation imposed on the Minister by the Irish Nationality and Citizenship Acts 1956 and 1986, to give reasons for decisions - as found by Mr. Justice Kelly in the High Court in Parshuram Mishra, Applicant, v. The Minister for Justice, Ireland and The Attorney General, Respondents [1994 No. 290 J.R.] - the FOI Act 1997 expressly imposes such an obligation. The position would be different if the Irish Nationality and Citizenship Acts contained a prohibition on giving statements of reasons, which they do not do.

I note that Hogan & Morgan, in Administrative Law in Ireland (3rd Edition) (1998), at pages 574 to 576, state that the FOI Act establishes a "far reaching duty to give reasons", saying that, where it applies, "the Act goes beyond the previous obligation to give reasons which have been deduced (mainly) from constitutional justice". They explain that the FOI Act goes beyond the previous obligation in four important respects. Firstly, the requirement that reasons be required in order to facilitate a judicial review or appeal has no equivalent in the FOI Act. Secondly, there is no restriction on the type of decision and the circumstances to which the right to a statement of reasons is attracted. Thirdly Hogan and Morgan state that it may be that "reasons will have to be given for both negative and positive acts". Finally, they suggest that, in considering the audi alteram partem principle in the performance of the duty to give notice of the case against a person, section 18(1), because of the way the obligation has been formulated, is likely to require the giving of reasons when the final decision is taken.

In light of the foregoing, I find that section18(1) of the FOI Act applies in this case and that, under that Act, your client has an entitlement to a statement of reasons for the Department's decision not to issue him with a certificate of naturalisation.

The Department, in its submission of 24 July 2002 to my Office, states that, notwithstanding the fact that an official of the Department makes a recommendation to the Minister, the final decision rests with the Minister and reasons for his decisions are not usually set down in writing. I am further advised that, in this case, an Assistant Principal made a negative
recommendation to the Minister without setting out the reasons for this recommendation in writing. The Minister agreed with the recommendation "and did not set out his reasons for agreeing with the recommendation". The Department concludes "consequently, it is only the Minister who can say why he decided to refuse a certificate of naturalisation". I am unsure as to what point is being made by the Department when it states that only the Minister can give reasons for the refusal of a certificate of naturalisation. As the head of the public body in question, the Minister for Justice, Equality and Law Reform is obliged, under the FOI Act, to cause a statement of reasons, requested under section 18, to be provided to a person entitled to such a statement. Leaving aside the question of officials making recommendations to Ministers without setting out their reasons for such recommendations in writing, I emphatically reject the notion that the mere fact that a record containing a statement of reasons does not already exist, results in the Department not being in a position or obliged under section 18 of the FOI Acts to provide such a statement. The very terms of section 18 make it clear that this is not the case and if it were indeed so, the potential for avoidance of the obligation imposed by the section would be great and this cannot have been intended by the Oireachtas.

Decision

Having carried out a review under section 34 (2) of the FOI Act, as amended, I hereby annul the decision of the Department of Justice, Equality and Law reform to refuse a statement of reasons under section 18 of the FOI Act.

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 eight weeks from the date of this letter.

Yours sincerely

Information Commissioner