Whether the Department has carried out its responsibilities under section 17 of the FOI Act in relation to certain records identified by the applicant and also whether its statement of reasons for particular actions is adequate for the purposes of section 18 of the Act

Case Summary

The Senior Investigator affirmed the Department's decision on both the section 17 and section 18 applications.

Date of Decision: 23.10.2009

Review Application under the Freedom of Information Acts 1997 and 2003 (the FOI Act) to the Information Commissioner

Background:

In his FOI request to the Department dated 12 July 2007, the applicant sought:-

1. a copy of the document attached to a specified record sought by the applicant in a previous request to the Department, the specified record listed by the Department in this case as record 249;
2. a statement of reasons and a statement of findings of fact under section 18 of the FOI Act for the decision of the Department not to reinstate him to his original position at a local office of the Department;
3. the records of all phone calls regarding him and his job including the dates, times and duration of those calls and the names of the people who made and received those calls;
4. that all incorrect material be removed from his file in accordance with section 17 of the Act;

In a subsequent letter dated 9 August 2007, the applicant stated that he was not requesting record 249, rather he was requesting the record attached to that record .  He also wanted "incorrect material... (consisting of)... all newspaper reports and cuttings" to be removed from his file.  In addition he requested reasons of fact as to why another specified record, record 224, which he stated was created by a named official of the Department, was put on his file and also the name of the person who gave that named official the material and why the record of the latter is missing from his (the applicant's) personnel file.

On 6 September 2007, the Department gave its decision (for the sake of clarity I will follow the numbering system used above) as follows:-

1. The Department claimed professional legal privilege on the record attached to record 249 and stated that its decision on that record had already been subject to review by the Commissioner who had affirmed the Department's decision.
2. In response to the applicant's request for reasons the Department stated that it had consulted with Local Management on the issue of reinstating the applicant in his original position and following this consultation Senior Management decided not to reinstate him.  It also informed him that the named official was no longer an employee of the Department and therefore it had not been possible to contact him to address the applicant's request.
3. The Department stated that it had no records of such phone calls and that therefore section 10(1)(a) applied.
4. The Department decided that the applicant had not produced sufficient evidence to show that the information in question was incomplete, incorrect or misleading and that therefore his application under section 17 was refused.   However, in relation to record 224, the Department decided that since it could not contact the named official, and in the light of a decision of the Court of Criminal Appeal regarding the applicant, the Department would address the request by cross referencing record 224 with the record of that Court decision.

Internal Review Request

On 21 September 2007, the applicant requested an internal review of the Department's decision.

Internal Review Decision

In its decision of 6 November 2007, the Department upheld its original decision in relation to points 1 and 3 (above). It also upheld its decision in relation to point 4 with the exception of record 224 which it now agreed to remove from the applicant's file as requested.

In relation to point 2 the Department offered the following more comprehensive statement of reasons:-

"The Department consulted with Local Management.  Local Management was not in favour of you (the applicant) being re-instated in your original position.   Therefore, following that consultation and in the best interests of all parties concerned, a decision was taken not to reinstate you to that position."

In addition, the Department advised that it had succeeded in making contact with the named applicant who:-

"advised that Record 224 reflected his understanding of the position at that time."

Application for Review by the Information Commissioner.

On 1 April 2008, the applicant made a submission requesting a review by the Commissioner of the Department's decisions. Initially, the applicant's requests for a review by the Commissioner into the Department's statement of reasons and the removal of material from his file were addressed by this Office as separate reviews under section 18 and 17 of the FOI Act respectively.   However, I have decided that as the two issues are so closely related, they can both be addressed in this single decision.

In his submission the applicant sought:-

1. "...a statement of factual reasons for which the Dept. of Agriculture decided not to reinstate me in my original position..." (at the Department's local office);
2. "...a statement of findings of fact which was relied upon by the Department to form the decision they made.";
3. "...the source of that false information (in record 224), the reason for creating it, and the name of the person that he (the named official) received it from; and
4. "...the information that is attached (to) record 249."

The applicant also requested "a copy of the memo taken at that consultation (between the Department and Local Management) which was relied upon by the Department to state that "following this consultation the decision was taken by Senior Management not to reinstate me in my original position".  However, as this was not part of the original FOI request it cannot be considered in the Commissioner's review. Should the applicant wish to pursue this aspect he is free to make a fresh FOI request for this information.

Further letter from the Applicant

In a further letter from the applicant dated 28 April 2008, he stated that, while he is no longer seeking records of phone calls, he is requesting "memos, emails, notes or any other material or record regarding the phone calls between Local Management and the Department that led to my job being refused to me."   Again, as this was not part of the original FOI request it cannot be considered in the Commissioner's review.

Subsequent letter from the Department

Arising from correspondence with this Office, the Department in its subsequent letter of 18 June 2008, offered a more comprehensive statement of reasons, findings of fact, and  background to record 224, by stating that notwithstanding the Court's decision in the applicant's case it felt that:- 

"... it had a duty of care towards you as an employee and did not want to reinstate you in a work area that might cause you difficulties in the light of the publicity which had surrounded the court case and for that reason took the decision not to reinstate you in your original position..." (at the Department's local office).

The Department did not make any findings of fact. Therefore there is no statement of findings.

There is no source (for record 224).  The information contained in Record 224, as far as (the named official) recalls, was via a telephone call, of which there is no record.  The record was created because it was relevant to your case."

Preliminary view of this Office

Having considered all the issues and the submissions, on 4 July 2008, this Office issued its preliminary view on the relevant issues.  In summary, this preliminary view held that the Department had properly discharged its obligation under sections 17 and 18 of the FOI Act, and that the other elements of the application to this Office were outside the scope of its review.

Response from Applicant

On 15 July 2008, the applicant, as is his right, advised this Office that he was not satisfied with its preliminary review.   It is therefore necessary to proceed to a formal binding decision.

Conducted in accordance with section 34(2) of the FOI Act by Mr. Seán Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner, "the Commissioner," to conduct this review).

Scope of the Review

In defining the scope of this review I must reassert the point made in this Office's preliminary views letter of 4 July 2008, that the powers of this Office are limited to consideration of requests as they are originally worded, and it does not have jurisdiction to consider records not encompassed by the original wording of any particular request.  I also note that the applicant subsequently withdrew that part of his original request relating to records of phone calls.  

Regarding his request for record 248 (attached to record 249), section 34(9)(a)(iii) of the FOI Act provides that the Commissioner may discontinue a review if she is of the opinion that "the matter to which the application relates is, has been or will be, the subject of another review under this section."   As record 248 has already been the subject of a previous decision of the Commissioner, I have, in line with section 34(9)(a)(iii), decided to discontinue this review insofar as it relates to record 248.  Therefore, I have conducted this review on the basis that the only issues for consideration are whether the Department's statements of reasons are adequate under section 18 of the FOI Act and also whether what the applicant considers to be "incorrect material" should be removed from his file in accordance with section 17.

I will first consider the issue of section 18.

Submissions

.

Findings

Analysis and Findings on Application under section 18

Section 18 of the FOI Act provides:

(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.....

Furthermore, section 18(5) provides:

(5) For the purposes of this section a person has a material interest in a matter affected by an act of a public body or to which such an act relates 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.

Section 18(6) of the FOI Act states that:

''benefit", in relation to a person, includes-

(a) any advantage to the person,

(b) in respect of an act of a public body done at the request of the person, any consequence or effect thereof relating to the person, and (c the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

In summary, 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. 

This means that to be entitled to a statement of reasons for an act of a public body, the applicant must be effected by the "act" of a public body and must have a "material interest" in a matter affected by the act or to which it relates.

In this case, I am satisfied that the act or decision of the public body which confers on, or withholds from, the applicant a benefit is the Department's decision not to reinstate him to his former position. Therefore, under section 18 of the FOI Act, the applicant is entitled to a statement of the reasons for this particular decision. 

The Department does not dispute the applicant's entitlement to a statement of reasons under section 18 and I will now need to consider whether or not the statement it gave is adequate for the purposes of section 18.

Features of a Statement of Reasons

The main characteristic of an adequate statement of reasons is that it should be intelligible and adequate having regard to the particular circumstances of the case.  The statement should be sufficiently clear to enable the requester to understand, without undue difficulty, why the public body acted as it did.  It should identify the criteria relevant to the act and explain how each of the criteria affected the act.  However, it is not the case that a statement should necessarily have to contain a detailed clarification of all issues identified by a requester as relevant to a particular act or decision.

Where an applicant applies for a review of a decision of a public body on the ground that he or she is not satisfied with the contents of the statement, the Information Commissioner's role is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. is the statement given adequate for the purpose of that section?  The Information Commissioner's remit does not however extend to examining the appropriateness or otherwise of the particular act for which reasons are sought.

While there is nothing in the FOI Act preventing a public body from providing statements of reasons which go into exhaustive detail regarding secondary actions/decisions if it so wishes and if such action is not prohibited by any other law, the only role of this Office in reviews involving section 18 is to decide whether any statement of reasons provided by a public body is adequate in the sense that it meets the requirements of section 18.

It is necessary, however, to decide whether the statement of reasons is adequate by reference to the substantive act or decision in question.

Adequacy of the Department's Statement of Reasons

The Department's definitive statement of reasons, provided to the applicant and quoted above in "Background",  purports to set out the basis on which it made its decision not to reinstate the applicant to his original position. Having considered the statement, in my view it is clear that the Department informed the applicant why it acted as it did, and I am satisfied the statement comprises a statement of reason sufficient to meet the Department's obligations under section 18 of the FOI Act.   I find accordingly.

Analysis and Findings on Application under section 17

The applicant contends that newspaper articles relating to his conviction held on the file contain inaccurate personal information of his and has sought their removal from the file in the context of section 17 of the FOI Act.  In previous decisions, the Commissioner has found that the onus of proof falls on the applicant to sustain a contention that personal information relating to themselves is, on the balance of probabilities, inaccurate, out of date or misleading (ref: 98158 on this Office's website:  www.oic.gov.ie).   In this case therefore, the onus lies on the applicant to satisfy that balance of probabilities test that the content of the newspaper articles, even if it is personal, is inaccurate, out of date or misleading.   Having considered the applicant's submissions on the matter, I find that he has not satisfied the balance of probability test as to the contended inaccuracy of the content of the articles.   The Commissioner has further found that public bodies are discharging their responsibilities under section 17 of the FOI Act by appending a statement to the records making it clear that the subject of the personal information in the records has disputed the accuracy of that personal information. 

Since the Department has attached such a statement to the articles in question, I consider that it has properly discharged its statutory obligations in respect of section 17.   I find accordingly.

Decision

Having carried out a review under section 34(2) and of the Freedom of Information Act 1997, as amended, I uphold the decision of the Department in this case and I find that the Department has fulfilled its obligations under sections 17 and 18 of the FOI Act.

Right of Appeal

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 decision.    

Seán Garvey

Senior Investigator

23 October 2009