Case 100115

The Senior Investigator affirmed Revenue'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, Revenue has provided an adequate statement of reasons for certain actions.

Date of Decision: 17.12.2010

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

Background:

On 16 October 2009, the Applicant applied to Revenue for a statement of reasons in relation to the non release of a particular record following her FOI request in 2003. This application was made in accordance with section 18 of the FOI Act. In its decision of 23 October 2009, Revenue stated it had no record of an FOI request in 2003 from the Applicant but that it had received and responded to an "Open Access" request that she had made on 1 August 2003, in which she had sought all records on her personnel file. Revenue clarified that the Open Access procedure had been introduced by it in May 2002, to facilitate its staff in accessing, outside the FOI Act, specific information held on its personnel files . However, the document in question was not held on the applicant's personnel file but was instead held on a file dealing with Promotions and was therefore beyond the ambit of her Open Access request. Therefore, in effect the document was not withheld - it was not relevant to her request and accordingly was not subject to release. Revenue also pointed out that the document had been released to the Applicant in May 2007 on foot of her further FOI request at that time.

On 6 November 2009, the Applicant sought an internal review of Revenue's decision. Following its internal review, on 23 November 2009, Revenue upheld its original decision and further clarified the issue of what might or might not be held on a person's personnel file. It quoted examples of records that would be kept on a separate subject file including those relating to an employee's involvement in Promotion Conferences/Competitions, Accident of (on?) Duty, Grievance Procedure and Bullying and Harassment Procedures. Such records might subsequently be placed on the personnel file but only when such activity was concluded and depending on the outcome.

On 10 May 2010, the applicant wrote to the Commissioner expressing her dissatisfaction with Revenue's statement of reasons and seeking a review.

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 Revenue has met its obligations on the Applicant's request under section 18 by providing an adequate statement of reasons. In my review I cannot take account of issues raised by the Applicant subsequent to her original FOI request for instance, her reference to "wrong information" held on her file. Such matters can, if she wishes, be the subject of further FOI applications under sections 17 or 18, as appropriate. In addition, I do not propose forming a judgement on Revenue's file management procedures.

Submissions

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Findings

Analysis and Findings on application under section 18

Section 18

Section 18 of the FOI Act provides that:-

 (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 that:

(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 provides 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 Revenue's decision not to release the relevant document to the Applicant 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 Revenue in its original FOI decision, its subsequent review and in correspondence such as that of April 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.

The 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 and its subsequent clarification of various issues, Revenue set out the basis as to why the document was not originally released to the Applicant. As outlined above, Revenue assert that as the document in question was not held on the Applicant's personnel file it was not considered as part of her Open Access request. Revenue also make the point that the document had been released to the Applicant in May 2007, on foot of her further specific FOI request at that time. It is not the role of this Office to make a finding as to whether or not Revenue should have conducted a wider search in response to the Applicant's Open Access request. As outlined, our role is confined to considering whether or not the statements already provided to the Applicant are adequate for the purposes of section 18 of the FOI Act.

Having considered the statements provided, in my view it is clear that Revenue has clearly answered the Applicant's enquiries. In my opinion, these statements set out why Revenue acted as it did, and accordingly I am satisfied that together they comprise a statement of reasons sufficient to meet Revenue's obligations under section 18 of the FOI Act. I find accordingly.

Decision

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

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

17 December 2010