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

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

Background

On 30 August 2011, the applicant submitted a two-part FOI request to the Department, in which he sought access to records and reasons for the decision not to provide him with information regarding his Pension Adjustment Order (PAO), as laid down in PAO guidelines. The Department issued a decision on 4 October 2011, following which the applicant sought an internal review. In its internal review decision of 30 December 2011 the Department stated that it had not identified records to indicate that there was any decision not to provide the applicant with the information relating to his PAO.

On 31 May 2012, this Office received a request from the applicant for a review of the Department's decisions. This review relates to the applicant's request for a statement of reasons for the Department's decision not to provide him with information regarding his PAO, as laid down in PAO guidelines. This Office's review of the Department's decision in relation to his request for access to records is being considered separately in review number 120122.

Following correspondence with this Office on the matter, the Department subsequently issued a comprehensive response to the applicant on 30 August 2012. The response contained a chronology of events relating the processing of the PAO and details of the reasons why certain correspondence was not forwarded to the applicant at the time.

Mr McDaid of this Office, wrote to the applicant on 20 September 2012 outlining his preliminary view that the Department had provided an adequate statement of reasons and invited further comments from the applicant. The applicant submitted a response on 2 October 2012 in he which stated that he could not accept the preliminary view. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

The scope of this review is confined solely to the question of whether or not the statement of reasons provided by the Department on 30 August 2012 is adequate for the purpose of compliance with section 18 of the FOI Act.

Findings

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.

Where a requester applies for a review of a decision of a public body on the ground that s/he is not satisfied with the contents of a statement or reasons, the role of this Commissioner 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. The Commissioner's remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought. Furthermore, while the Commissioner considers that a statement of reasons should be sufficiently clear to enable the requester to understand without undue difficulty why the public body acted as it did, she does 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 should say at this stage that it is not entirely clear to me that the Department was necessarily required to provide a statement of reasons in this case for the particular act identified. As I have outlined above, for an entitlement to a statement of reasons to exist, the person must be affected by the act and have a material interest in a matter affected by the act [my emphasis].

Section 18(5) provides that a person has a material interest in a matter affected by an act of a public body or to which it 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."

Clearly, there will be many acts/decisions taken by public bodies where section 18 has no relevance. As the Commissioner has stated in previous decisions:

"Section 18 does not apply to every action of a public body. The Oireachtas could not have intended that public bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the public body and its officials. Taking section 18 as a whole, it seems to me that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit."

It will follow that a key consideration as to whether a person is entitled to a statement of reasons for an act of a public body is whether the act has the consequence or effect of conferring on, or withholding a benefit from the person. The act identified in this case was the Department's decision not to provide the applicant with information regarding his PAO, as laid down in PAO guidelines. Having carefully examined the contents of the Department's statement of reasons it is not clear to me that the Department's failure to provide the applicant with copies of correspondence which had issued to the non-scheme member's solicitors had the consequence or effect of conferring on or withholding a benefit from the applicant.

Nevertheless, as the Department did, indeed, issue a statement of reasons, I have considered whether the statement provided is adequate to meet the requirements of section 18 of the FOI Act in the circumstances of this case.

The Department's statement acknowledged that due to a combination of factors, some correspondence was not copied to the applicant. It stated that there was no deliberate or active decision made to withhold any information regarding the PAO. On the matter of the correspondence relating to the draft and final PAO, the Department's statement explained that apart from technical inaccuracies regarding death in service benefit in the draft PAO and regarding the commencement date in the final PAO, there was no perceived need to copy the associated documentation to the applicant. It explained that the content of a letter received from the solicitors for the non-scheme member had served to assure the scheme trustee that both legal teams were in communication with each other.

The Department's statement concluded that in light of the fact that the applicant had developed a genuine belief that information was being deliberately withheld from him, it is now intended that a review of the procedures and guidelines will be undertaken.

In his letter of 20 September 2012 to the Department and in his letter of 2 October 2012 to this Office, the applicant raised specific concerns as to the Department's compliance with the PAO guidelines and he questioned the appropriateness of certain of the Department's actions in the processing of the PAO. He also challenged the Department's chronology of events as contained in its letter of 30 August 2012. However, it is not within the remit of this Office to consider these matters. As I have indicated above, this review is concerned solely with the question of whether the Department has adequately explained why it had not provided him with all relevant correspondence relating to the PAO. I am satisfied that it has done so. I find, therefore, that the statement of reasons issued by the Department in this case is adequate for the purpose of compliance with the requirements of section 18 of the FOI Act.

Decision

I find that the Department's statement of reasons is adequate for the purpose of compliance with the requirements of section 18 of the FOI Act in this case.

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.

Stephen Rafferty
Senior Investigator
23 October 2012