Case 100264

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

Date of Decision: 24.02.2011

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

Background:

On 9 September 2010, the applicant applied to the Department for a statement of reasons in relation to "as to why I was not even short-listed for the Authorised Officer posts in ["Y"] (a Unit in the )". This application was made in accordance with section 18 of the FOI Act.  On 5 October 2010, the Department responded to the applicant that it had decided to grant his request and provided a statement of reasons as follows:

"The short-listing process took the form of an assessment by senior management in [ "Y"]  of all application (CVs and memos submitted) for the posts, having regard to the selection criteria and requirements for the posts set out in Office Notice  ../2010.  Following this assessment a short-list of those considered most suitable by ["Y] on the basis of their applications was provided to HR.  All such assessments are, by their nature, relative to each other and [the applicant] was not short-listed on this occasion.  When advising of its short-list, ["Y"] commented on the high standard and quality of all of the applicants".

On 7 October 2010, the applicant sought an internal review of the Department's decision.  Following its internal review, on 29 October 2010,  the Department upheld its original decision.  On 16 November 2010, the applicant applied to the Commissioner for a review of the Department's decision.

On 2 February 2011 the Department confirmed that, following correspondence with this Office, it provided further statement of reasons which set out the process through which Authorised Officers were appointed and in which it indicated that the applicant was one of a number of officers who had expressed an interest in becoming an .....in the ["Y"] . Following a short listing of applicants, a number meet with ["Y"] management, two of whom were subsequently chosen as ...for ["Y"] .

The Department further indicated in its statement that the standard of application was very high, with equal marks were awarded  for CVs and Covering Memo's and that only those who had been awarded full marks were selected to meet with  ["Y"] management. Regarding the applicant's CV and Covering Memo, the Department's indicates that his CV was on par with other applicants but his Covering Memo, while of a good quality, did not attract full marks when compared to those who were awarded top marks, because the applicant had not fully use the opportunity provided by the Memo to explain why he considered himself suitable for appointment as .... The Department concluded that it was for this reason that the applicant did not get full marks and consequently was not invited to meet with ["Y"] management.

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 two statements provided to the applicant by the Department.

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 Department has met its obligations on the applicant's request under section 18 by providing an adequate statement of reasons for the decision it took that affected him; i.e. it decided not to offer him the position. 

For the purpose of this review I am considering the two statements issued by the Department to the applicant to be, together, the Department's overall statement of reasons for the purpose of section 18 of the FOI Act.

Submissions

.

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.  

I note that Mr Brian Murnane, Investigator of this Office, informed the applicant on 4 February 2011 of his preliminary view that the applicant was entitled to a statement of reasons in this case.   I agree with Mr Murnane's view on that point and am satisfied that  the Department'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. 

Given that the Department does not dispute the entitlement to a statement under section 18, the question that now arises is whether or not the statements provided by the Department its original FOI decision and in its subsequent correspondence with the applicant are adequate for the purposes of section 18 of the FOI Act.

Features of a Statement of Reasons:

In his letter to the applicant, Mr Murnane set out what the Commissioner considers should be the principal features of a statement of reasons having regard to section 18, which I agree with and repeat here. 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 statements provided are together adequate to meet the requirements of section 18 of the FOI Act in the circumstances of this case. In its original statement of reasons and its subsequent provision of a further statement, the Department set out the basis as to why the applicant was not offered a position as Inspector in the ["Y"].  As set out above, it explained the process through which the appointments were made, confirmed the marks awarded to the applicant and to the [number of .] candidates who were short listed, and also set out its view as to why the marks awarded to the applicant were not as high as those awarded to those [number of ] candidates.  It is clear from the applicant's submissions that he does not accept that the statement provided by the Department is adequate.  In his most recent submission of 15 February, the applicant contends that the further statement provided by the Department on 2 February is inadequate as, he contends, the process through which the Department short-listed candidates for the ["Y"] posts was flawed.  As stated above, the Commissioner's remit in section 18 cases does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought.  Therefore, in making my decision on this case, I cannot have regard to the applicant's contention that the selection process was flawed, and I am confined to considering whether or not the statement provided by the Department was adequate for the purposes of section 18.

Having considered the statements provided, in my view it is clear that the Department's overall statement of reasons explains adequately, in a clear and intelligible manner, why the Department acted as it did, and accordingly, I am satisfied that they comprise a statement of reasons sufficient  to meet the Department's  obligations under section 18 of the FOI Act.  I find accordingly.

Decision

I find that the Department'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  on which notice of the decision was given to the person bringing the appeal.  

Seán Garvey

Senior Investigator

24 February 2011