Whether the CPSA 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 purportedly failing to provide him with certain information

Conducted by the Senior Investigator in accordance with section 34(2) of the FOI Act

Background

The background to the applicant's FOI request lies in a dispute between the applicant and the CPSA in relation to the manner in which a complaint by him was processed. In particular, the applicant apparently believes that the CPSA operates a "supplementary review procedure", notwithstanding the final determination by the CPSA in relation to a complaint before it.

On 25 July 2014, the applicant sought a statement of reasons under section 18 of the FOI Act as to "why Mr Patterson and/or staff of the CPSA and/or the Commissioners did not bring this [purported "supplementary review"] procedure/process to my attention as it could have been useful to me".

By way of email dated 22 August 2014, the CPSA responded to the applicant, stating that it was not accepted that there is a further appeal procedure/process available. On 22 August 2014, the applicant sought an internal review of the CPSA's decision. On 10 September 2014, following internal review, the CPSA upheld its original decision on the basis that a statement of reasons had been provided. On 10 September 2014, the applicant applied to this Office for a review of the CPSA's decision.

On 17 November 2014, the applicant furnished submissions on the matter. 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 decisions of the CPSA on foot of the applicant's request, and to the applicant's submissions.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether the CPSA has complied with the provisions of section 18 of the FOI Act in relation to the applicant's request for a statement of reasons as to why he was not informed of review procedures which he believes are operated by the CPSA.

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 Case 140135 (Mr. X & Department of Foreign Affairs and Trade), the Commissioner confirmed that:-

"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."

It would seem to me that that similar considerations arise in relation to this review as did in Case No. 99212, and that the circumstances of this case are closely matched with the example presented in that case by the then Commissioner:-

"If, for example, a public official fails to provide a client with information which should have been given or gives information which is misleading and if as a result, the client fails to obtain a benefit due to him/her or suffers a penalty, then a case may lie against that public body for maladministration which has had an adverse effect on the client. Clearly, while the adverse effect may be directly due to factors within the control of the client (e.g. failure to apply for a benefit or failure to apply in time for a benefit) it is also due indirectly to the failure of the official to give the necessary or the correct advice. In such a case section 18 gives the client a right to be given reasons why he/she suffered the adverse effect. 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."

In Case 140135, the Commissioner summarised his interpretation of Case No. 99212 as follows:-

"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."

For clarity's sake, I should explicitly state that no inferences should be drawn with regard to the manner in which the CPSA dealt with the applicant from the reference to "maladministration" or the use of the term "failure to advise correctly" in these decisions.

In this case, the applicant seeks reasons as to why he was not advised of the existence of a purported "supplemental review procedure". The CPSA's position, as set out in its decision, is that the alleged "supplementary review procedure" was not brought to the applicant's attention because no such procedure exists. The applicant claims that judicial review proceedings brought by him against the CPSA, in which he was ultimately unsuccessful, could have been avoided or shortened had he been informed of the existence of the supposed "supplemental review procedure". The applicant claims that he took two weeks off work "at his own expense" to pursue those proceedings. I do not accept that the applicant is entitled to rely on legal proceedings instituted by him at his own volition, and in which he was unsuccessful, as demonstrating the withholding of a benefit from him within the meaning of section 18(6) of the FOI Act.

Therefore, having carefully considered the applicant's submissions, I am satisfied for the foregoing reasons that he has not demonstrated a material interest as required under the provisions of section 18 of the FOI Act. Therefore, he is not entitled to a statement of reasons pursuant to that section. I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the CPSA in this case to reflect my finding that the applicant has not demonstrated a material interest as required under the provisions of section 18 of the FOI Act and that he is not, therefore, entitled to a statement of reasons for the act identified.

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.

Stephen Rafferty
Information Commissioner