Case 100198

The Commissioner found that the HSE's statement of reasons, when taken in conjunction with its letter of 26 February 2009 and the Applicants' meeting with its Social Work Manager, satisfied the requirements of section 18 of the FOI Act. She affirmed the decision of the HSE accordingly.

Case Summary

Whether the HSE's statement of reasons for an act (its handling of an anonymous complaint involving the applicants) satisfied the requirements of section 18 of the FOI Act. The case was remitted to the Commissioner by order of the High Court (dated 26 July 2010) following the Applicants' appeal against the Commissioner's decision in Case Number 090283

Date of Decision: 22.10.2010

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

Background:

The Applicants wrote to the HSE on 2 September 2009 seeking information under various headings concerning its handling of an anonymous complaint. The HSE accepted the request under one heading only and treated it as an application under section 18 of the FOI Act for a statement of reasons for an act affecting the Applicants. The relevant application was for reasons in respect of why:

1.1 There was no need to refer and/or discuss the matter at committee.

1.2 There was no need to undertake an investigation into the safety and/or welfare of our children.

1.3 There was no need to refer the matter to any other agency/authority/party.

1.4 There was no risk to the safety of our children.

1.5 There was no risk to the welfare of our children.

In its decision of 17 September 2009 the HSE provided a statement of reasons and upheld the original decision in its internal review decision of 20 October 2009. The Applicants applied to this Office on 29 October 2009 for a review of the HSE decision. On completion of its review, my Office made a decision on 23 March 2010 in which the decision of the HSE was amended and the Applicants were found not to have a material interest in the matter and therefore the Applicants were not entitled to a statement of reasons under section 18 of the FOI Act. The Applicants appealed to the High Court against my Office's decision. In the course of those proceedings, my Office, the Applicants and the HSE sought to have the matter remitted to my Office for fresh consideration. On 26 July 2010, Mr Justice Kearns directed that the original decision be set aside and that the matter be remitted to my Office.

All parties were invited to make submissions to my Office in relation to the fresh consideration undertaken. The Applicants and the HSE confirmed that they would not be making a submission on 7 September 2010 and 8 September 2010 respectively. I note that Ms Alison McCulloch, Investigator (who had not been involved in the original review) wrote to the Applicants on 9 September 2010 setting out her preliminary views that the statement of reasons was adequate for the purposes of section 18 of the FOI Act, and that the Applicants responded disagreeing with these views. On 6 October 2010 Ms McCulloch informed the HSE of her views and on 8 October 2010 the HSE confirmed that it would not be responding to the preliminary views. I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting this review, I have had regard to the submissions of the HSE and the Applicants in the previous review and in this case. Further, I have taken into account the submissions of the parties in the High Court appeal. I have also examined records comprising the HSE's correspondence with the Applicants on the matter at issue.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner, Emily O'Reilly.

Scope of the Review

The Applicants in their submission dated 22 September 2010 queried:

" Whether the HSE have any jurisdiction under the Child Care Act, 1991. Whether the HSE is entitled to receive information regarding children in their area who ARE receiving adequate care and proctection [sic]. Whether the HSE is entitled to act on information it receives in relation to children in their area who ARE receiving adequate care and proctection [sic].

Whether the HSE is derelict in its duty in acting on the views of a complainant as to the existence of child care and proctection [sic] issues where the views are not supported by any evidence of actual non care or non proctection [sic] of children within its area.

Whether the HSE has the necessary duty or authority under the Child Care Act to investigate child care and proctection [sic] at all or on foot of a complaint to the HSE in that regard".

They also contend that "the HSE had and has no authority to have/retain a copy of these post-placement reports under the Adoption Agreement with (name of country), the Reports (and information contained in them and arising out of them) being for the sole benefit of the (name of country) Authorities and no other. The reports relied on are therefore unlawfully held and the Child Care section of the HSE have no right to either access these or rely on them both on that account or in their own right or otherwise".

Whether the HSE had the authority to deal with the complaint in question or whether the reports are "for the sole benefit of the (name of country) Authorities" and are "therefore unlawfully held"is not something for this Office to determine. Where a person applies for a review of a decision of a public body on the grounds that s/he is not satisfied with the contents of the statement given, my role is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. whether any statement that might have been given is adequate. My remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought.

This review is concerned solely with the question of whether the HSE's statement of reasons satisfied the requirements of section 18 of the FOI Act.

Submissions

.

Findings

Analysis and Findings

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. This means that to be entitled to a statement of reasons for an act of a public body, the Applicant must be affected by the "act" of a public body and must have a "material interest" in a matter affected by the act or to which it relates.

In this case, the Applicants requested a statement of reasons concerning the decision of the HSE not to refer an anonymous complaint further, not to conduct an investigation and its conclusion that there was no risk to the safety and welfare of the Applicants' children. In their submission of 20 March 2010, the Applicants contend that the benefit conferred on, or withheld from them is the knowledge and associated peace of mind that the complaint and the HSE's consideration of it was full, complete and also proper. The Applicants also contend that as they are the only persons affected by the "act" that they have a direct and particular material interest in the matter.

Given that the HSE does not appear to dispute the Applicants' entitlement to a statement under section 18 and provided them with a statement of reasons in its decision on 17 September 2009, I will now consider whether or not the statement given is adequate for the purposes of section 18.

I consider that the purpose of section 18 of the FOI Act is to ensure that such reasons for an act as may be identified are conveyed to the Applicant. Where reasons cannot be identified, it is not the purpose of section 18 to require the creation, after the event, of such reasons. It is important to bear in mind that not every act of a public body is capable of being explained by way of a written statement of reasons and the fact remains that an Applicant may not agree with the reasons given without these necessarily being inadequate.

In a number of previous decisions (for example cases numbered 99212, 99424, 031099, 090172 and 080003 which are available on my Office's website www.oic.gov.ie) my Office has set out what should be the principal features of a statement of reasons having regard to section 18. For example, in his composite decision in Case No. 99212, 99213, 99214 & 99215, the former Commissioner, Mr Kevin Murphy, commented:

"In my view, a statement of reasons 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........ I do not consider 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."

I am happy to adopt the position as outlined by the former Commissioner.

I understand that the Applicants had a meeting with the Child Care Manager, Mr Mike Van Aswegen, on 23 February 2009 and that Mr Van Aswegen provided details of the anonymous complaint, explained the background to the process following the receipt of the complaint and provided reasons for the decisions taken by the HSE. The Child Care Manager also provided further details about the complaint and how it was handled in a letter to the Applicants on 26 February 2009. This letter only came to the attention of my Office when it was produced in the High Court proceedings. It is therefore relevant to point out that this review, under section 34 of the FOI Act, is a de novo review based on the law and the circumstances as they apply at the time of the making of the review decision. That this is so is clear from the judgment of the High Court in the case Minister for Education and Science v Information Commissioner - the text of this judgment is available at www.oic.gov.ie - where Mr. Justice O'Caoimh, commenting on the nature of a review under section 34 of the FOI Act, said that "importance must be attached to the fact that the nature of the appeal agreed between the parties arising under Section 34 of the Act is by way of a hearing de novo by the Information Commissioner" and that "the decision that was to be made by Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision". This position was endorsed by Mr Justice Quirke in his judgment in The National Maternity Hospital and The Information Commissioner (text of this judgment is also available at www.oic.gov.ie).

The HSE, in its statement of reasons dated 17 September 2009 in response to the application under section 18, set out the basis on which it based its decision regarding the handling of the anonymous complaint and the safety and welfare of the Applicant's children. It stated that the Social Work team within the Adoption Department had completed post placement reports regarding the children and that "the Social Work team thus had a good understanding of your family" and that therefore "it was able to establish that no direct concern had come to light". In his letter of 26 February 2009 Mr Van Aswegen said:

"When a matter comes before the Child Protection Services, we are obliged in accordance with the Child Care Act 1991 to establish whether matters of child protection exist within a specific allegation that is brought before the service. You will appreciate that when an allegation, no matter how lacking in specific detail, comes before the Child Protection Services, these services are obliged to pursue a line of enquiry. In these particular circumstances we are aware that the Regional Adoption Services is obliged to maintain links with your family and issue post placement reports. In this context we are satisfied that no child protection issues appear to exist".

Mr Van Aswegen also said that he liaised with the Child Protection Services and the Regional Adoption Services regarding the anonymous letter and any child protection concerns arising from it and received information that satisfied the Child Protection Services that no child protection issues existed.

It seems to me that this response clearly outlines the HSE's consideration of the complaint and the enquiries it made to establish that no child protection issues existed. I accept that the Applicants may not agree with the reasons as set out. However, the question of whether or not the HSE was justified in drawing such conclusions in respect of the complaint is not a relevant consideration in the determination of the adequacy of the statement of reasons given. As I have indicated above, I do not consider that a statement of reasons should necessarily have to contain a detailed clarification of all issues identified by an Applicant as relevant to a particular act or decision. Furthermore, this Office has, in the past, accepted that there are practical limits to the degree of explanation which can be given as to why a particular judgement was made. Therefore, I find that the statement of reasons given by the HSE in its decision of 17 September 2009 when read in conjunction with its letter of 26 February 2009 and the Applicants' meeting with Mr Van Aswegen on 23 February 2009 explains adequately, in a clear and intelligible manner, why the HSE acted as it did, and therefore satisfies the provisions of section 18.

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 HSE 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 from the date on which notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

22 October 2010