The Senior Investigator found that the University's revised statement of reasons satisfied the requirements of section 18 of the FOI Act and affirmed the decision of the University accordingly.

Case Summary

Whether the University's revised statement of reasons satisfied the requirements of section 18 of the FOI Act.

Date of Decision: 09.06.2010

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

Background:

In an application dated 17 November 2008, the Applicant sought a statement of reasons for the decision of the Governing Authority of the University to decline to become involved, under the terms of Statute K, in a dispute between the Applicant and the President of the University, Professor John Hughes, relating to the manner in which a certain scholarship had been awarded. In its original decision, the University provided a statement of reasons as follows:

"The Governing Authority received legal advice confirming that the President could not be regarded as being a party to the dispute in this particular case, and that therefore the circumstances set out in Section 6 of Statute K of the NUI Maynooth Statutes do not apply and that it would be inappropriate for the Governing Authority to become involved in this matter."

As the University upheld its original decision on internal review, the Applicant made an application to this Office for an external review of the matter. In his application for review, the Applicant appeared to acknowledge that it is not within the remit of this Office to examine the appropriateness or otherwise of the particular act for which reasons are sought.

In a letter dated 29 April 2010, Ms. Melanie Campbell, Investigator, advised the Applicant of her preliminary view on the matter. She questioned whether the Applicant was entitled to a statement of reasons under section 18 for the "act" concerned. Alternatively, she considered that the revised statement of reasons issued by the University was adequate for the purposes of section 18. The Applicant replied to Ms. Campbell's preliminary view letter in a submission dated 31 May 2010.

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 application for review and the submissions made by the applicant.

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

My review in this case is concerned solely with the question of whether the University's revised statement of reasons satisfies the requirements of section 18 of the FOI Act. I should add that a review under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the review.

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."

Where a person applies for a review of a decision of a public body on the ground that s/he is not satisfied with the contents of the statement given, the Commissioner's role of the Commissioner, or her delegate, is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. whether the statement given is adequate.  As the Applicant is aware, the Commissioner's remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought. 

As the Applicant points out, unlike Ms. Campbell, the University did not question his entitlement to a statement of reasons under section 18 in relation to the decision of the Governing Authority to decline to become involved in his dispute with the President.  However, the University has consistently maintained that it does not consider the President to be a party to any dispute relating to the manner in which the scholarship conerned was awarded.  The Applicant identifies the benefit which has been withheld from him as a "review of [his] dispute".  However, as the University does not consider there to be a dispute with the President that is subject to review by the Governing Authority, I do not see how the "act" in question could be regarded as conferring or withholding a "benefit" within the meaning of section 18 of the Act.  Moreover, while a review of a disputed matter may result in the conferring or withholding of a benefit, such as the award of a scholarship, it is not clear what the Applicant hoped to achieve from the review sought by the Governing Authority.

Having examined the University's revised statement of reasons, it is my understanding that, in a letter dated 17 January 2008, the Applicant made a complaint to the President regarding the manner in which the scholarship was awarded and also in relation to the manner in which an earlier, related complaint had been dealt by the University.  In his letter, the Applicant did not refer to Statute K6, which provides that "where in any case the President himself or herself is a party to a dispute which comes within the scope of these procedures, the Governing Authority will, where appropriate, assume the functions of the President".  In the circumstances, the Applicant's letter was treated by the University as a request for a review by the President of the relevant award process.  Accordingly, the President carried out an investigation, but concluded that the award process was fair and equitable to all candidates.  As the Applicant was dissatisfied with the outcome of the President's investigation, he then made a complaint to the Governing Authority in which he referred to a "dispute" under Statute K6 between himself and the President based on perceived deficiencies in the President's review.  The University considered that, in making his complaint to the Governing Authority, the Applicant was effectively seeking a further review of the matters initially complained of relating to the manner in which the scholarship was awarded.  The University did not consider that the Applicant's dissatisfaction with the President's review could properly be regarded as a dispute for the purposes of Statute K6.

Similarly, the Governing Authority did not regard the Applicant's original dispute with the University has having been:

• changed or extended so as to become a dispute not only with the University but also with the President, or
• replaced by a new dispute with the President, or
• supplemented by a new and parallel dispute with the President to which Statute K6 could properly be regarded as applicable.

For these reasons, the Governing Authority did not regard the President as a party to a dispute for the purposes of Statute K6 and therefore considered that it would be inappropriate for it to get involved in the matter.

I find that the University's revised statement of reasons adequately explains why the Governing Authority declined to become involved in the Applicant's dispute with the President.  In sum, as the Applicant's complaint against the President was based on his dissatisfaction with the President's review of the relevant award process, the Governing Authority did not regard the President as a party to a dispute for the purposes of Statute K6.  Whether the Governing Authority was correct in adopting this view of the matter is not something for this Office to determine.  In the circumstances, even assuming that the Applicant is entitled to a statement of reasons, I find that the revised statement provided by the University satisfies the requirements of 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 University in this case.

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 after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

09 June 2010