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 Red Zones or Public Safety Zones in various County Development Plans.

Date of Decision: 30.11.2009

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

Background:

This review involves an application, dated 10 March 2008, for a statement of reasons under section 18 of the FOI Act for acts relating to the Council's decision to adopt Red Zones or Public Safety Zones in various County Development Plans.  In a decision dated 9 May 2008, the Council apparently considered that the relevant act underlying the section 18 application in this case was the decision to adopt the Fingal Development Plan 2005-2011.  The Council found that adopting the Development Plan, including the provisions relating to Red Zones and Public Safety Zones, did not confer on or withhold from the Applicant a benefit which was not conferred on or withheld from persons in general.  The Council therefore refused the application for a statement of reasons under section 18 of the FOI Act.  The Applicant applied to the Information Commissioner for review of the Council's decision in a letter dated 31 October 2008.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act.  In conducting this review, I have had regard to the contents of the application for review and the Applicant's correspondence with the Council regarding this matter.  I note that, on 27 October 2009, Ms. Melanie Campbell, Investigator, wrote to the Applicant to advise him of her preliminary view that he was not entitled to a statement of reasons under section 18 of the FOI Act.  The Applicant was given a period of three weeks in which to reply.  As no reply from the Applicant has been received, I have proceeded to a decision on the basis of the information now before me.

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)

Scope of the Review

The review in this case is concerned solely with points (a) and (b) of the application dated 10 March 2008, i.e. the Applicant's request for a statement of reasons for the following:

(a)  why the Council did not notify individual affected landowners about the proposed designations of either the Red Zones or Public Safety Zones in the various County Development Plans;

(b)  why the Red Zones on Runway 16/34 are not symmetrical about the extended centre-line of the runway.

The issue before me is whether the Applicant is 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."

I find that section 18 does not apply in this case.  In previous decisions to which Ms Campbell drew the Applicant's attention,  the Commissioner has observed that there are many acts/decisions taken by public bodies where section 18 has no relevance.  She considers 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 Red Zones or Public Safety Zones in its County Development Plans.  This is a policy matter that has general applicability.  As Ms. Campbell explained to the Applicant, the Council's decisions regarding individual notification of the proposed Red Zones or Public Safety Zones, or whether to make the Red Zones symmetrical or asymmetrical, 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 Red Zones or Public Safety Zones, in turn, affects every person who owns lands within the Red Zones or Public Safety Zones concerned.  In the circumstances, I find that the Applicant does not have a material interest in the matter.  I therefore 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

30 November 2009