Whether the Department is justified in its decision under section 18 of the FOI Act to refuse to provide reasons for its decision to refuse the Applicant's naturalisation application.

Case Summary

The Senior Investigator affirmed the decision of the Department.

Date of Decision: 09.02.2010

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

Background:

In his original request to the Department of 16 December 2006 the Applicant, through his legal representatives, sought reasons for the decision to refuse his application for naturalisation. On 26 January 2009 the Department refused the request under section 18(2) of the FOI Act. The Applicant applied for internal review of this refusal on 27 January 2009, to which the Department replied on 6 March 2009 affirming the original refusal of the request. The Applicant applied to this office for review of that refusal on 19 June 2009.

This Office informed the Applicant on 17 December 2009 of its preliminary view that, in the circumstances of this case, the Department was not required to provide him with a statement of reasons for its refusal of his application for naturalisation. The Applicant, as is his right, did not accept that view and I have therefore decided to conclude this review by way of a formal decision on the matter.

I have now concluded my review which was carried out in accordance with the provisions of the FOI Act as amended by the Freedom of Information (Amendment) Act, 2003. In carrying out my review I have had regard to correspondence received from the Applicant's solicitors and from the Department.

Conducted in accordance with section 34(2) of the FOI Act by Sean Garvey, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of Review

In response to the Applicant's request, the Department refused to provide a statement of reasons and initially referred to section 18(2) of the FOI Act to justify that refusal. Following correspondence with this Office the Department subsequently informed the Applicant that the refusal was on foot of section 18(2)(b) of the FOI Act. My review is concerned with whether the Applicant is entitled to a statement of reasons under section 18 of the Act. I wish to make it clear that my review is not concerned with whether the Minister's decision to refuse the Applicant's naturalisation application was correct or not.

Submissions

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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 contained in an exempt record or information as to whether a record exists or does not exist where the Act requires the non-disclosure of whether the record exists or does not exist. this means that the extent of the reasons which i can give in this case is limited.

Section 18(1)

Following an application from a person who is affected by an 'act' of a public body, section 18(1) provides that:

"the head of a public body shall, ...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"

An 'act' includes a decision of a public body.

Section 18(2)(b)

However, section 18(2)(b) qualifies this entitlement by providing that:

"nothing in this section shall be construed as requiring - (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 the Act."

The FOI Act requires a public body not to disclose whether or not a record exists in circumstances 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 not disclose the existence or non-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 contained in sections 23, 24, 26 and 28 of the FOI Act.  This means that a public body need not provide a statement of reasons for an 'act', or a decision, if to do so would disclose the existence or non-existence of a record in circumstances where the non-disclosure of its existence or non-existence is required by the Act.

I have examined the relevant files of the Department, and considered its submissions, on this matter. I make no comment as to whether or not a record exists which would explain the reasons why the Applicant's naturalisation application was refused. Having regard to the circumstances of this particular case and regardless of whether such a record exists, Iam satisfied that given the provisions of section 18(2)(b) the Department is not obliged to provide a statement of reasons in this particular case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended), I hereby affirm the decision of the Department and find that it is not obliged to provide a statement of reasons under 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 that decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Seán Garvey

Senior Investigator

09 February 2010