Case 100221

The Senior Investigator found that the applicant was not entitled to a statement of reasons under section 18 of the FOI Act.

Case Summary

Whether the applicant is entitled to a statement of reasons under section 18 of the FOI Act relating to a refusal to permit the applicant to compete in a promotion competition to Higher Executive Officer in the Department.

Date of Decision: 28.01.2011

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

Background:

Introduction

On 15 July 2010, the applicant applied to the Department for a statement of reasons in relation to

"..the reasons why the HR Department refused to exercise its unpublished discretion to allow me to compete in the above competition (Office Notice 11/2010 - HEO Competition). ............... I would consider a valid statement of reasons to detail amongst others the exact source of the discretion used by the Department, the nature of the discretion, the evidence used in applying it, the circumstances when it was applied and where it was not applied , the weighting given to my representations, weight given to observation(s) of the Commission [Public Appointments Commission ], finding of material questions of fact(s) and on what material(s) were these findings of fact(s) based."

Preliminary Matters: What constitutes a proper section 18 Statement of Reasons:

In his request to the Department quoted above, the applicant sets out his understanding of the requirement section 18 places on public bodies regarding provisions of statement of reasons in response to FOI requests. The Commissioner's understanding of the requirement as set out in previous decisions (for example cases numbered 100198, 99212, 99424, 031099, 090172 and 080003 available on www.oic.gov.ie) and with which I agree, is that:

"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.  It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However,  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."

Background to the Case

This application was made in accordance with section 18 of the FOI Act.  On 11 August 2010, the Department responded to the applicant that it had decided to grant his request and provided a statement of reasons as follows:

"I understand that (the applicant) was not admitted to the HEO competition because he did not submit an application to the Public Appointments Service (PAS) via their on-line system by the closing date of 4th June, 2010. The Office Notice for the competition (11/2010) specified that applications had to be received no later than 4th June 2010 and that applicants would receive an email to the effect that their application had been successfully submitted. Applicants were also informed that they should contact PAS (at a specified telephone number) if they did not receive the confirmation email. (The applicant) did not contact PAS until 21st June 2010.

It is customary for PAS to hold tests on an alternative date(s) in the event that candidates are unable to attend on the original date(s). This practical arrangement, for candidates who have applied by the closing date, is considered by the HR Division to an entirely different matter to changing the closing date for the competition. HR Division was not prepared to re-open the competition for (the applicant) (or any other applicant) as it was satisfied that adequate notice had been given of the deadline for receipt of applications and relevant procedures in that regard."

On 8 September 2010, the applicant sought an internal review of the Department's decision on the basis that an inadequate statement of reasons was provided. Following its internal review, on 14 September 2010,  the Department upheld its original decision and further clarified that "the reasons why (the applicant) was not admitted to the HEO competition has already been explained to him. He did not submit an application to the Public Appointments Service via their on-line system by the stipulated closing date of 4 June 2010"

On 15 September 2010, the applicant wrote to the Commissioner requesting  a review of the Department's decision.

On  23 November 2010, Mr Brian Murnane, Investigator of this Office, wrote to the applicant in response to his correspondence of 18 November 2010. He advised the applicant that from considering the contents of the statement of reasons provided to him by PAS in response to a section 18 request (which he copied to this Office),  the decision whether to accept or refuse to  accept a late application was clearly a matter for PAS and not for the Department. He also informed the applicant of his preliminary view that the Department (even though it had chosen to do so) was not required to provide a section 18 statement as there was no ""act" to which the provisions of that section applied. The applicant made a further submission on 26 November 2010 disputing this.  

Therefore in conducting this review, I have had regard to the submissions of the Department as well as those of the applicant, the provisions of the FOI Acts and  the contents of the statements provided to the applicant by the Department. I have now decided to conclude the review by way of a formal, binding decision. 

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

I have conducted this review on the basis that the only issue is whether or not the Department has met its obligations on the applicant's request under section 18 of the FOI Act and whether the applicant is entitled to a statement of reasons under section 18 of the Act and, if so, whether the statement given by the Department is adequate. In my review I cannot take account of other issues raised by the applicant as this Office's role is confined to consideration of the statements provided and not to the appropriateness or otherwise of the particular act for which reasons are sought.

Submissions

.

Findings

Section 18

Section 18(1) 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:

"act" in relation to a public body, includes a decision (other than a decision under this Act) of the body;

''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, an

(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

In summary, section 18 of the FOI Act means that to be entitled to a statement of reasons from an act of a public body an applicant must be affected by the "act" of a public body and must also have a ""material interest" in a matter affected by the act, or to which it relates.  For the purpose of section 18 the term "act", as used in the section, must be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers loss or a penalty or other disadvantage. I consider that the most appropriate question for this Office to consider is whether the Department's actions or inaction is an "act" which falls for consideration in accordance with section 18 of the FOI Act.

Having considered the matter, I am satisfied that the decision not to accept the applicant's late application to compete in the promotion competition was taken by PAS and not the Department. Therefore, I am also satisfied that the Department did not engage in an "act" to which section 18 of the FOI Act applies. This, in my view, is supported by the Collins English Dictionary definition of act which is " something done or performed, a deed; the performance of some physical or mental process". Neither do I accept, as contented by the applicant, that responsibility for the action by PAS, when acting as agent for a Department in public sector competitions, could in some way or another become the responsibility of the Department. Rather the act of not permitting the applicant to enter the competition was one solely for PAS  and fully accords with the terms and conditions of the Code of Practice- Appointments to Positions in the Civil Service and Public Service (2007) when Department's delegate recruitment for competitions to PAS (section 4.1.2 page 26 of that Code  refers). Therefore, I consider that, as the Department was not engaged in an act to which section 18 of the FOI Act applied, the applicant is not entitled to a statement of under section 18 of the FOI Act. I find accordingly. 

As I find that the applicant is not entitled to a statement of reasons under section 18 it is not necessary for me to consider whether the statement of reasons given to the applicant by the Department is adequate. Even if I had not formed this view, I would find that the Department's overall statement of reasons explains adequately, in a clear and intelligible manner, the Department's involvement in the competition and the decisions made by PAS in the recruitment process. Overall  I would have been satisfied that it  comprises a statement of reasons sufficient to meet the Department's obligations under section 18 of the FOI Act, if such a statement was warranted in the particular circumstances of this case. 

Decision

Having carried out a review under section 34(2) I hereby amend the decision of the Department and substitute the findings above.

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

Seán Garvey

Senior Investigator

28 January 2011