The Senior Investigator found that the Applicant did not have a material interest in the matter, as that term is defined in section 18(5) of the FOI Act, and therefore that the Applicant was not entitled to a statement of reasons under section 18 of the FOI Act. She affirmed the decision of the Council accordingly.

Case Summary

Whether the Applicant is entitled to a statement of reasons under section 18 of the FOI Act for acts relating to the Council's decision to adopt Public Safety Zones in its 1988 County Development Plan.

Date of Decision: 03.12.2009

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

Background:

This review involves an application, dated 18 April 2008, for a statement of reasons under section 18 of the FOI Act for acts relating to the Council's decision to adopt Public Safety Zones in its 1988 County Development Plan.  The Council refused the Applicant on the basis that the acts concerned predated the commencement of the FOI Act.  The Applicant applied to the Information Commissioner for review of the Council's decision in a letter dated 1 July 2008.  In his application for review, the Applicant argued that the acts referred to in his application for a statement of reasons have continuing effect and that section 18 therefore applies.

With the authority delegated to me by the Commissioner, I have now completed this review in accordance with section 34(2) of the FOI Act.  In carrying out my review, I have had regard to the contents of the application for review and also the submissions made by the Applicant and the Council in this case.  I note that, on 27 October 2009, Ms. Melanie Campbell, Investigator of this Office, wrote to the Applicant to advise him of her preliminary view that he did not have a material interest in the Council's decision to adopt Public Safety Zones and therefore was not entitled to a statement of reasons under section 18 of the FOI Act.  The Applicant replied to Ms. Campbell's preliminary view in a submission dated 12 November 2009.  In his reply, the Applicant stated that he is unable to refer to the previous relevant decisions of this Office, because he does not have access to the website on which they are published.  However, Ms. Campbell summarised the previous decisions and explained her reasons for considering that the Applicant was not entitled to a statement of reasons under section 18 of the FOI Act.  In the circumstances, I do not agree with the Applicant that he has been placed at any disadvantage in the course of this review.  I have therefore decided to conclude the review by way of a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review)

The review in this case is concerned solely with points (a), (b), and (c) of the application dated 18 April 2008, i.e. the Applicant's request for a statement of reasons for the following:

(a)  why the Council decided to adopt Public Safety Zones in the 1988 County Development Plan;

(b)  why the Council did not publicly advertise its intention to adopt such Public Safety Zones;

(c)  why the Council did not notify individual affected landowners like the applicant about the proposed adoption of such Public Safety Zones in the 1988 County Development Plan.

The issue before me is whether the Applicant entitled to a statement of reasons under section 18 of the FOI Act.

Submissions

.

Findings

Section 18 of the FOI Act provides that a person is entitled to a statement of reasons for an act of a public body where that person is affected by the act and has a material interest in a matter affected by the act or to which it relates.  Section 18(5) provides that a person has a material interest in a matter affected by an act of a public body or to which it 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."

A "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 this case, the Applicant argues in particular that there is no justifiable reason for having a Public Safety Zone in relation to Runway 13/31 at Shannon Airport.  He also suggests that the decision to designate this Zone is open to challenge because of the lack of notification given to landowners such as himself.  However, it is not within the remit of this Office to consider the appropriateness or otherwise of the particular act for which reasons are sought.  Where a person has a right to a statement of reasons under section 18 of the FOI Act, the purpose of the statement is not to justify the act concerned, as such, but rather to ensure that such reasons for the act as may be identified are conveyed to the Applicant.

In any event, I find that section 18 does not apply in this case.  In previous decisions to which Ms Campbell drew the Applicant's attention, e.g., Mr X and the Department of Agriculture and Food, Case Number 031099, available at www.oic.ie, the Commissioner has observed that there are many acts/decisions taken by public bodies where section 18 has no relevance.  I further note that the word "act" as used in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit.  In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage.  In other words, if the same outcome would result regardless of the reasons for the act in question, then section 18 does not apply to that act.The relevant "act" in this case was the decision by the Council to adopt Public Safety Zones in the 1988 County Development Plan.  This is a policy matter that has general applicability.  As Ms. Campbell explained to the Applicant, the Council's decisions regarding public and individual notification of its intention to adopt the Public Safety Zones did not confer or withhold a "benefit" within the meaning of section 18 of the FOI Act; rather, it was the substantive decision to adopt such Zones which had this effect.  The decision to adopt the Public Safety Zones, in turn, affects every person who owns lands within the Public Safety Zones concerned.  This point is not disputed by the Applicant.  Therefore, although the Applicant disagrees with the decision to adopt the Public Safety Zones, particularly the Zone associated with Runway 13/31, I find that he does not have a material interest in the matter.  For this reason, I conclude that the Applicant is not entitled to a statement of reasons under section 18 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Council.

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

Elizabeth Dolan

Senior Investigator

03 December 2009