The Senior Investigator affirmed the Institute's decision and found that it had satisfied the obligations of the public body on the provision of a statement of reasons under section 18 of the FOI Act.

Case Summary

Whether, in accordance with section 18 of the FOI Act, the Institute has provided an adequate statement of reasons for certain actions.

Date of Decision: 29.09.2010

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

Background:

On 28 October 2009 the Applicant applied to the Institute for a statement of reasons in relation to its selection process for a particular position. This application was made in accordance with section 18 of the FOI Act. On 25 November 2009, the Institute responded to the Applicant stating it had decided to grant his request and provided a seven page statement of reasons. As the earlier decision had been made by the Head of the Institute it was not possible to conduct an internal review in line with the provisions of section 14 of the FOI Act and the Institute advised the Applicant that if he was dissatisfied with the statement of reasons he could apply to this Office for a review. On 16 February 2010 the Institute wrote again to the applicant expanding on its statement of reasons.

On 12 March 2010, the Applicant duly wrote to the Commissioner expressing his dissatisfaction with the Institute's statement of reasons and seeking a review of it.

This review was conducted in accordance with section 34(2) of the FOI Act by Mr. Seán Garvey, Senior Investigator, Office of the Information Commissioner, who is duly authorised by the Information Commissioner ("the Commissioner") to do so.

Scope of Review

The scope of this review is confined to deciding whether or not the Institute has met its obligations on the Applicant's request under section 18 by providing an adequate statement of reasons.

Submissions

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Findings

Analysis and Findings on application under section 18

Section 18

Section 18 of the FOI Act provides:-

(1) The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, 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.

Furthermore, section 18(5) provides:

(5) For the purposes of this section a person has a material interest in a matter affected by an act of a public body or to which such an act 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.

Section 18(6) of the FOI Act states that:

''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 summary, section 18 of the FOI Act provides that a person who is affected by an act of a public body and has a material interest in a matter affected by the act, or to which it relates, is entitled to a statement of reasons for the act and of any findings on any material issues of fact made for the purposes of that act.

I am satisfied that the Institute's decision not to select the Applicant for the position in question is an act of the public body which, in this case, withholds from the Applicant a benefit and, accordingly, is an act to which section 18 of the FOI Act applies. Therefore, under that section, the Applicant is entitled to a statement of the reasons for this particular decision.

The question that now arises is whether or not the statements provided by the Institute on 25 November, 2009 and 16 February, 2010 together are adequate for the purposes of section 18 of the FOI Act.

Features of a Statement of Reasons:

The main characteristic of an adequate statement of reasons is that it should be intelligible and adequate having regard to the particular circumstances of the case. The statement should be sufficiently clear to enable the requester to understand, without undue difficulty, why the public body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act.

However, it is not the case that a statement should necessarily have to contain a detailed clarification of all issues identified by a requester as relevant to a particular act or decision.

Where a requester applies for a review of a decision of a public body on the ground that he or she is not satisfied with the contents of the statement, the Information Commissioner's role is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. is the statement given adequate for the purpose of that section? The Information Commissioner's remit does not however extend to examining the appropriateness or otherwise of the particular act for which reasons are sought.

Adequacy of the Statement in this Case

This Office must decide whether or not the statement provided is adequate to meet the requirements of section 18 of the FOI Act in the circumstances of this case.

In its statement of reasons provided to the Applicant in its letter of 25 November 2009 and its clarification of various issues on 16 February 2010, the Institute set out the basis for its conduct of the relevant selection process. Having considered the statements provided, in my view it is clear that the Institute has clearly answered the Applicant's enquiries. In my opinion, these statements set out why the Institute acted as it did, and accordingly I am satisfied that together they comprise a statement of reasons sufficient to meet the Institute's obligations under section 18 of the FOI Act. I find accordingly.

I have taken into account the Applicant submissions in which he has made it clear that he is particularly concerned that there are several records which cannot be located or which no longer exist. I must emphasise that the Information Commissioner, in implementing the terms of the FOI Act, is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act and that the Act does not provide for a right of access to records which in the opinion of the Applicant ought to exist.

Decision

I find that the Institute's statement of reasons satisfies the obligations of the public body under section 18.

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 from the date of this decision.

Seán Garvey

Senior Investigator

29 September 2010