The Senior Investigator affirmed the Department's decision. Having regard to section 18(5) of the FOI Act, she found that the Applicant did not have a material interest in the acts for which he sought a statement of reasons, and was thus not entitled to such a statement under section 18(1) thereof.

Case Summary

Whether the Department is justified in its refusing to provide a statement of reasons under section 18 of the FOI Act for acts taken by it relating to Red Zones at Dublin Airport.

Date of Decision: 03.03.2010

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

Background:

The Applicant's original application, dated 26 November 2008, sought a statement of reasons from the Department under section 18 of the FOI Act as to:

a) Why the Department converted International Civil Aviation Organisation (ICAO) 3-dimensional obstacle clearance surfaces into 2-dimensional ground safety zones at Dublin Airport in 1968;

b) Why it delineated Red Zones with lengths of 1,829 and 3,048 meters in respect of the existing Runway 11/29 and the proposed Runaway 10/28 at Dublin Airport;

c) Why it wrote to Dublin City Council in 1993 requesting it to restrict all private development on the part of "landowners like [the applicant]";

d) Why it sold lands in the Red Zone of proposed Runway 10/28 to the Irish Kennel Club, despite having sent the letter referred to at c) above';

e) Why Aer Rianta were permitted to operate carparks at Dublin Airport on lands owned by the Department prior to 1 January 1998; and

f) Why the Department "stood idly by" and permitted Aer Rianta to challenge An Bord Pleanála's decision to grant planning permission to a privately-owned carpark in 1999.

The Department's decision of 23 December 2008 refused the application. In essence, it contended that its position regarding Aer Rianta's legal challenge of the An Bord Pleanála decision was not an act of the Department within the meaning of section 18, while the remaining acts took place before the commencement of the FOI Act. The Applicant sought an internal review on 15 January 2009. The Department's internal review decision of 9 February 2009 upheld its earlier refusal to provide a statement of reasons, saying that (i) while section 18 had been found by this Office not to be retrospective unless the act the subject of the application had continuing effect, it considered this not to be the case in respect of the actions at hand; (ii) the Applicant did not have a material in interest in certain of the acts; and (iii) that some actions the subject of the application were not "acts" for the purposes of section 18 of the FOI Act.

The Applicant sought a review by this Office on 13 May 2009. In carrying out that review, I have had regard to the above correspondence; to the Department's submission to this Office dated 12 June 2009; to the relevant portions of the Applicant's submission of 17 June 2009 and his response, dated 22 February 2010, to a letter sent to him by my colleague, Mr Sean Garvey, dated 5 February 2010. I have also had regard to the provisions of the FOI Act.

Scope of the Review

My review is concerned solely with the question of whether the applicant is entitled to a statement of reasons under section 18 of the FOI Act, as sought in his application to the Department of 26 November 2008.

Submissions

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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."

The Commissioner interprets the word "act", as used in section 18, as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. She also considers that 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).

Firstly, I note that the Department raised a number of issues in its correspondence with the applicant. One was whether or not certain acts referred to in the original application are "acts" for the purpose of section 18 of the FOI Act in the first place. In this regard, the current Commissioner has observed that there are many acts or decisions taken by public bodies where section 18 has no relevance. A further matter was whether the acts the subject of the application, that took place before the introduction of the FOI Act, have continuing effect (which the former Information Commissioner, Mr Kevin Murphy, had indicated might be relevant in considering whether the FOI Act was relevant to such actions, notwithstanding that section 18 is not retrospective). However, given my findings below, I do not intend to determine these issues. The word "act", as contained in the remainder of this letter, is to be read accordingly.

I can accept that the Department's acts, listed at a) to c) above, have affected the Applicant in his capacity as owner of lands adjacent to Dublin Airport. However, the fact that there may be many public interests in the Department explaining why it carried out these particular acts is irrelevant to my decision. The Applicant must also have a material interest in a matter affected by those acts, as defined above by section 18(5) of the FOI Act. It seems to me that the Department's acts would have been similarly disadvantageous to other owners of lands adjacent to the airport, which I consider to be a class of persons of significant size, having regard to all the circumstances, of which the Applicant is a member. Indeed, at point c) of his application the Applicant specifically refers to the restrictions on private development on the part of "landowners like [him]"". Thus, I have no option but to find that the Applicant does not have a material interest in the Department's acts, listed at a) to c) above, for the purposes of section 18 of the FOI Act.

Turning to act d), even if it is the case that the Department's decision to sell lands to the Irish Kennel Club, apparently for development purposes, was at odds with its request to Dublin City Council regarding private development at the airport, I find this not to be a decision that affected the Applicant (nor has it been explained to me how this might be the case). Even if there was such an effect on him, I consider that all other landowners near the airport would be affected similarly. Thus, the Applicant cannot be said to have a material interest, as defined by section 18(5), in matters relating to that act.

It is not clear to me if, at point e) of his application, the Applicant is contending that the Department specifically permitted Aer Rianta to operate carparks on its lands prior to 1 January 1998, or if he is contending that it should have taken action to require Aer Rianta to cease such operations. However, it is not necessary for me to consider this question further. I have no reason to accept that either such act affected the Applicant. Neither do I have reason to accept that the Applicant has a material interest of the sort defined in section 18(5), in that either such act would have had equal effect on all other landowners adjacent to the airport, and indeed on persons in general, as it would on the Applicant.

Turning to point f), I do not see how the Applicant could have been affected by the Department's act, or rather its alleged failure to act. I have no reason to believe that he was in any way involved with the car park proposal concerned nor has he provided me with any details to support such a contention. I also consider that any impact on the Applicant of the Department's alleged failure to act would have equal effect on the proposers of the carpark concerned, and indeed on any others who might have had an interest in developing lands at the airport. Thus, I find that the Applicant has no material interest in this act for the purposes of section 18(5) of the FOI Act.

As an aside, I note that the Department's internal review decision explains that it had "no role in permitting or refusing" the legal action concerned, in that Aer Rianta was a "body corporate entitled to act in its own right in legal matters". Even if this were an act for which a statement of reasons might be required under section 18, the above seems to me to set out adequately why the Department took no action in respect of Aer Rianta's legal challenge. The fact that the Applicant may not be satisfied with the Department's reasons would, to my mind, be insufficient reason to require the Department to provide further detail to him in this regard. I consider that section 18 does not apply in this case and I find accordingly.

Decision

Having carried out a review in this case under section 34(2) of the FOI Act, I hereby affirm the decision of the Department's refusal to provide a statement of reasons to the Applicant, as sought by him on 26 November 2008 further to section 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 a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

03 March 2010