Case 040419. Application for a statement of reasons as to why the applicant was refused a certificate of naturalisation - section 18 - whether a public body was entitled to refuse to provide a statement of reasons for its decision - section 18(2)

Case Summary

Facts

The applicant, who had been living in Ireland for a number of years, had his application for a certificate of naturalisation refused by the Department. The Department did not explain the reasons for its refusal. Under section 18 of the FOI Act the applicant sought a statement of the reasons for the Department's refusal to grant him a certificate of naturalisation. The Department refused to provide a statement of reasons citing section 18(2) of the FOI Act.

Decision

The Commissioner found that in the circumstances of this case the Department was entitled, in accordance with section 18(2), to refuse to provide a statement of reasons.

Section 18(2) provides that nothing in section 18 is to be taken as requiring either:

"(a) the giving to a person of information contained in an exempt record, or

(b) the disclosure of the existence or non-existence of a record if the non-disclosure of its existence or non-existence is required by this Act."

Having considered the matter carefully, the Commissioner was satisfied that if the Department was to provide an explanation for its decision to refuse a certificate of naturalisation in this case it would have to (a) disclose information in a record which was exempt from release under one or more of the 'exemptions' contained in the FOI Act, or (b) disclose the existence or non-existence of a record the non-disclosure of the existence or non-existence of which was required by the FOI Act. The FOI Act requires a public body to 'refuse to confirm or deny' the existence of a record where to do so would cause the harms envisaged in particular exemptions in the Act. For example, section 27(4) of the FOI Act provides that a public body shall refuse to confirm or deny the existence of a record if to do so could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates (section 27(1)(c)). Similar provisions are also contained in sections 19, 22, 23, 24, 26 and 28 of the FOI Act.

Given the provisions of section 18(2) and section 43(3) (which requires the Commissioner to take all reasonable precautions, in these types of cases, to prevent disclosure of information in an exempt record or information as to whether a record exists or does not exist) the Commissioner was unable to elaborate further on the reasons for her decision. However, the Commissioner has made it clear that, when relying on section 18(2) as justification for not providing a statement of reasons for a decision of a public body, each case must be examined on its own merits. When such cases come before the Commissioner for review, she will need to satisfy herself that the public body is justified in its decision not to give a statement of reasons. This will normally include examination of whatever relevant records may exist, if any.

The Commissioner has also indicated that the decision does not affect the decision of her predecessor in Case Number 020353 : Mr X and the Department of Justice, Equality and Law Reform, to the effect that a public body is required, under section 18, to provide a statement of reasons for a decision even where other relevant legislation does not require the public body to explain its decision.

Date of Decision: 20.03.2006

Our Reference: 040419

20.03.2006

Mr X

Dear Mr X

I refer to your application for review of the decision of the Department of Justice, Equality and Law Reform ("the Department") to refuse to provide a statement under section 18 of the Freedom of Information Act ("the FOI Act") for the reasons for the refusal of your application for naturalisation. I wish to apologise for the delay in dealing with your application which was due to the large number of cases with this Office.

Background

I have now completed my review of the Department's decision which has been carried out in accordance with the provisions of the FOI Act. In carrying out my review I have had regard to the decision of the Department and its submissions of 18 January 2005 and 2 February 2005. I have also examined records held on the Department's file on this matter.

Scope of Review

My review is concerned solely with whether the Department is entitled to refuse to provide you with a statement, under section 18 of the FOI Act, of the reasons for its decision to refuse your application for a certificate of naturalisation. I wish to make it clear that I have no role in deciding whether the Department's decision to refuse you a certificate of naturalisation was correct or not.

Findings

While I am required by the FOI Act to give reasons for my decision I must also have regard to section 43(3) of the Act which requires me to take all reasonable precautions to prevent disclosure of information in an exempt record or information as to whether a record exists or does not exist in a case where the Act requires a public body not to disclose whether the record exists or does not exist.

Section 18 provides that:

"(1) The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person-

(a) of the reasons for the act, and

(b) of any findings on any material issues of fact made for the purposes of the act.....".

The Department refused to provide you with a statement of reasons under section 18 of the FOI Act. In its decision letter of 25 May 2004 and its decision dated 8 July 2004 following 'internal review' the Department referred to section 18(2). Section 18(2) provides that nothing in the section is to be taken as requiring either:

"(a) the giving to a person of information contained in an exempt record, or

(b) the disclosure of the existence or non-existence of a record if the non-disclosure of its existence or non-existence is required by this Act. "

Having considered the matter carefully and having regard to the Department's submissions on the matter, I am satisfied that the Department is entitled to refuse to provide you with a statement of reasons under section 18(2) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I have decided to affirm the decision of the Department in this case.

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 a review must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner