Whether the Department was justified, pursuant to Section 18 of the FOI Act, in its decision to refuse to provide a statement of reasons to the applicant in relation to the act or decision of refusing to nominate the applicant as a participant in an overseas election monitoring mission.

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

Background
The background to the applicant's FOI request lies in his application to the Department for nomination as a short term observer in an overseas presidential election. It appears that the applicant had previously been included on the Department's Election Observation Roster from which observers were drawn but was not included on a new roster which was established in May 2013 following a review of the existing roster. Notwithstanding his exclusion, he applied, by email dated 9 April 2014, to participate in the election monitoring mission in question as an observer. He was not selected and he subsequently applied, on 7 May 2014, for a statement of reasons under section 18 of the FOI Act as to why he was not nominated by the Department to participate in the relevant election monitoring mission.

By way of email dated 9 May 2014, the Department refused the application on the basis that that the applicant was not materially affected by the act of the Department in nominating observers for the mission as he was not a member of the Election Observation Roster. On 9 May 2014, the applicant sought an internal review of the Department's decision. On 28 May 2014, following internal review, the Department upheld its original decision. On 30 May 2014 the applicant applied to my Office for a review of the Department's decision.

On 5 August 2014, Mr Niall Mulligan, Investigating Officer, informed the applicant of his view that the Department's decision to refuse to provide a statement of reasons for the acts at issue was justified, and invited him to make further submissions. The applicant indicated that he did not accept Mr. Mulligan's view and furnished further submissions on 20 August 2014 and 24 August 2014. Accordingly I have decided to conclude this review by issuing a formal, binding decision. In conducting this review I have had regard to the provisions of the FOI Act, to the submissions of the Department and to those of the applicant.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified in refusing the applicant's request for a statement of reasons under section 18 of the FOI Act as to why he was not nominated by the Department to observe the relevant presidential election.

Analysis and Findings

Section 18 of the FOI Act provides that a person is entitled to a statement of reasons for an act of a public body where that person is affected by the act and has a material interest in a matter affected by the act or to which it relates. Section 18(5) provides that a person has a material interest in a matter affected by an act of public body or to which it relates:-

"[I]f 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."

The terms of section 18(5) exclude acts which have general applicability. Rather, the act must affect a person particularly, albeit not necessarily exclusively. Where the act does not relate individually to the person concerned, I take the view that the decision maker must have regard to all of the relevant circumstances in determining whether the applicant is affected in at least some particular manner as compared to others. If others are similarly affected, this does not necessarily remove the act from the ambit of section 18. However, the greater the number of persons similarly affected, the more general and remote the interests of the persons affected are likely to be.

Section 18(6) defines a "benefit" in relation to a person as including:-

(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 Case 99212, (Mr X and the Department of Agriculture, Food and Rural Development) the then Commissioner considered that the word "act" in Section 18 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. He stated:-

"In my view, 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. 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 a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 18 does not apply to that act."

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 and whether that benefit is also conferred on or withheld from persons in general or a class of persons as set out in section 18(5) of the Act. In Case 090131 (Ms. C & Department of Health and Children), the former Commissioner stated as follows:-

"I consider that the applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of the public body; i.e. the applicant bears the burden of showing that he or she has a material interest in the matter".

In his submission of 24 August 2014, the applicant argues that the approach taken by this Office in relation to the requirement to show a material interest is mistaken in that a higher standard is demanded to be entitled to a statement of reasons under section 18 than that required in the context of judicial review proceedings. He suggests that while a person taking judicial review proceedings must show an interest in a matter, that interest can be broad and can include a public interest or a private interest, such as a "financial or reputational interest."

Leaving aside the question of whether the applicant has accurately set out the approach taken by the Courts regarding judicial review proceedings, I do not accept that this Office has set too high a standard by requiring a person seeking a statement of reasons under section 18 to show that he or she has a material interest in a matter affected by the act or to which it relates. Section 18 is quite clear. It provides, at section 18(1) that 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 may seek a statement of reasons (my emphasis). Furthermore, the terms "material interest" and "act" are respectively specifically defined at sections 18(5) and 18(6) of the FOI Act, as outlined above.

The applicant also argues that my Office has failed to specifically set out the evidential requirements in relation to the burden upon him to demonstrate a material interest. The FOI Act is silent as to the standard of proof which should apply in such cases. I take the view that the standard of proof required is that of "the balance of probabilities". It follows that an applicant, seeking a statement of reasons for an act of a public body under section 18 must show me that on the balance of probabilities, he or she has a material interest in a matter affected by the act or to which it relates. It may not be necessary in every case for the applicant to furnish material evidence to support his or her position. However, at a minimum, he or she must be in a position to set out the circumstances that establish an entitlement to a statement of reasons, by identifying the benefit in question, within the meaning of section 18(6) of the FOI Act, the basis upon which the act may be said to confer on or withhold from him or her that benefit, and the basis for holding that the act does not also confer or withhold the benefit from persons in general or a class of persons which is of significant size.

The applicant further argues that the requirement to demonstrate a material interest must be modified in terms of an FOI context where a public body has a duty to assist a requester and there is a presumption in favour of disclosure. While I fully accept that public bodies have a duty to assist individuals who wish to make applications under the FOI Act, I fail to see how this necessitates a modification of the requirement that the individual shows a material interest as required by section 18. Furthermore, it seems to me that the presumption in favour of disclosure does not apply in the case of requests for a statement of reasons under section 18. I note the comments of McKechnie J in Deely v. Information Commissioner [2001] I.R. 439, where he stated that:-

"Under s. 34(12)(b) of the Act of 1997, a decision to refuse access to records 'shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified'. That presumption does not appear to apply when a person exercises his right to request information under s. 18."

I would add that, insofar as it is relevant, I am satisfied that the Department has adequately explained to the applicant its reasons for considering that he does not have a material interest in the decision in question. In its decision on internal review, the Department stated that nominees to act as short term observers in the relevant overseas presidential election were drawn from the Election Observation Roster established in 2013 and managed by the Department. The decision maker considered that only members of the roster can be materially affected by the Department's decision to nominate a mission from that roster and as the applicant was not a member of the roster, he had not demonstrated that he was materially affected by the decision of the Department in a way that persons generally are not affected.

In its submissions to my Office, the details of which were provided to the applicant by Mr Mulligan of my Office, the Department states that it has sole responsibility for sending forward election monitors on behalf of the State to OSCE election monitoring missions. It states that it has been charged with establishing the roster for approximately 10 years, since the Agency for Personnel Overseas (APSO) was subsumed into the Department and the administrative and management functions for elections rostering were taken over by it. The Department adds that only members of the roster or officers of the Department have been sent forward as participants in OSCE election monitoring missions in the time that it has been responsible for empanelling rosters in relation to election monitoring, and that the Minister defers to the established administrative practice of selecting OSCE participants from the roster. The position of the Department at this time is that only members of the election rosters or officers of the Department are eligible for selection to act as participants in OSCE election monitoring missions.

In his submission of 5 August 2014, the applicant argues that, in circumstances where the Department has failed to update its Section 15 and 16 Manuals, then I should not take the Department's submission at face value and that I should rule that the evidential onus has shifted to the public body to prove that no benefit could ever have been given. I disagree. I see no grounds for not accepting the veracity of the Department's submission in this case, nor do I see any grounds for changing my view that the applicant bears the burden of proof in establishing that he or she has a material interest in a matter affected by the act for which a statement of reasons is sought. Having carefully considered his submissions, it does not appear to me that the applicant has been in any way prejudiced in his ability to set out the detail of his particular situation.

The applicant also argues that Case 99212 is of little or no value in deciding this case. However, it seems to me that this view is based on a misinterpretation of the findings of the former Commissioner in Case 99212. In the case in question, the applicant argued that the failure of certain public officials to provide him with certain documentation might have resulted in his incurring a penalty under the Sheep Headage Scheme and he sought a statement of reasons as to why the two officials acted as they did. The former Commissioner found that any reasons for the alleged failure of the two officials to supply the applicant with certain information did not affect the outcome of his application for headage payments. He stated:-

If a proper statement of reasons (i.e. one that meets the requirements of section 18) is given then the client will be able to see that the adverse effect resulted from the failure of officials to advise correctly. In my view, however, section 18 would not require the public body to give reasons why the officials failed to give full or correct advice e.g. lack of knowledge, lack of experience, lack of training, genuine misunderstanding etc. Analysis of why or whether maladministration may have occurred lies in the province of the Ombudsman, not the Information Commissioner.

The applicant interprets the Commissioner's finding as a finding that the application for the grant was hopeless and/or that the applicant had no possibility of receiving the headage grant. He argues that such a finding requires an assessment of the merits of the application, which lies in the province of the Ombudsman. He suggests that once an element of discretion exists, then there can be no finding that an application is hopeless or had no prospects of success. He argues that Case 99212 must be interpreted, having regard to the decision of the Supreme Court in Mallak v. The Minister for Justice [2012] 3 IR 297, as meaning that if there was any exercise of discretion in relation to the "act", then he would be entitled to a statement of reasons.

The applicant's interpretation of Case 99212 is clearly incorrect as the then Commissioner made no finding that the application for a headage grant was hopeless. Rather, as I have outlined above, he found that found that any reasons for the alleged failure of the two officials to supply the applicant with certain information did not affect the outcome of his application for headage payments. In other words, while the failure of the officials to advise correctly may have affected the application, the reasons why they failed to advise correctly did not. I am satisfied that it is appropriate to continue to rely upon the approach adopted in Case 99212, namely that the word "act" in Section 18 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.

In essence, it appears the applicant's argument is that the Minister retains discretion to nominate election observers from the population at large, notwithstanding the existence of the roster and that, as such, he has a material interest the actions of the Department in the nomination process and is entitled to a statement of reasons as to why he was not nominated. Regardless of whether or not the applicant is correct in his assertions concerning the existence of discretion in this case, the fact remains that it is that Department's position that only members of the election rosters or officers of the Department are eligible for selection to act as participants in OSCE election monitoring missions and that the established administrative practice is that OSCE participants are selected from these groups.

The applicant also argues that the previous roster, of which he was a member, did not expire on the appointment of the 2013 roster, and that "there are good grounds of legal argument that the prior roster is still legally in being". Regardless of the applicant's views on this matter, the fact remains that the Department is clearly of the view that the 2013 roster is the only relevant roster and nominates from that roster only. The Department may structure the performance of its administrative functions as it deems fit. The appropriateness or otherwise of such arrangements or any purported maladministration is a matter for the Ombudsman or the Courts, not the Information Commissioner.

Accordingly, as the applicant was not included on the roster from which participants were selected and was not an official of the Department, I am satisfied that he is not a person with a material interest in the matter in question for the purposes of section 18 of the FOI Act. He has not shown that he had a material interest in the administrative decision, as the act in question did not have a bearing on the outcome of whether he received or did not receive a benefit, or suffered a loss or a penalty or other disadvantage. It is also important to appreciate that my remit does not extend to the appropriateness or otherwise of the particular actions of a public body and that for the purposes of the FOI Act, the taking of an interest, no matter how extensive, by a person, does not of itself confer that "material interest" which is required under section 18(5). I therefore find that the decision of the Department to refuse the request under section 18 of the FOI Act was justified.

Finally, it may be noted in passing that, even had I found that the applicant has a material interest in the matters in question, I am of the view that the Department has clearly explained its reasons for not nominating him. The Department's decision letter stated that "the mission to observe the ... election is drawn from the Election Observation Roster ... you are not a member of this roster". As such, notwithstanding that I have found the Department to have been justified in holding that the applicant did not have a material interest in the matter in question, I would observe that the decision also stated reasons for the purported act, and findings made on the material issue of fact for the purposes of that act, within the meaning of section 18(1) of the FOI Act.

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 Department 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.

Peter Tyndall
Information Commissioner