Whether the HSE has fulfilled the requirements of section 18 of the FOI Act in relation to the applicant's request for a statement of reasons for certain matters relating to a claim for incremental credit

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review has its background in a claim the applicant had submitted to the HSE for incremental credit for previous employment. By letter dated 9 March 2012, the HSE official who was appointed to make a decision on the claim informed the applicant of her decision that the applicant did not have an entitlement to the payments claimed. On 18 February 2014 the applicant submitted two applications to the HSE under section 18 of the FOI Act. While she explained in her letter that the purpose of both section 18 applications was to ascertain the reasons for the decision to refuse her claim, her first application was addressed to the investigating officer who was involved in the consideration of her claim for incremental credit. The applicant requested that the official concerned provide an explanation for five separate statements made in the letter of 9 March 2012. In the second application, she sought further information from the HSE's decision maker in relation to the decision to refuse her claim. Specifically, she sought details of the criteria for the decision, the policy or practice implemented to justify the decision and the fact and evidence supporting that decision with particular reference to the conditions of Department of Health Circular 10/71. She also sought further information in relation to 10 separate statements made in the letter of 9 March 2012.

The HSE issued its decision in response to this request on 28 March 2014, in which it set out its responses to the points raised by the applicant. As the applicant was not satisfied with this response, she submitted a quite detailed application an internal review of that decision on 30 April 2014. The HSE issued its internal review decision on 29 May 2014 in which it endeavoured to address the applicant's internal review request. The applicant was not satisfied with this response and applied to this Office for a review of this decision on 28 November 2014.

During the course of this review, Mr Christopher Campbell of this Office spoke with the applicant and subsequently wrote to the applicant by email outlining his views on the matter and inviting her to refine her application for a statement of reasons. In her response dated 12 March 2015, the applicant expressed a view that the "HSE should give reasons for their actions in omitting and avoiding, in March 2012 and subsequently, giving [her] the information that they had decided in March 2012 not to address [her] claim under Circular 10/71.

In conducting this review, I have had regard to the correspondence between this Office and both the HSE and the applicant, and to the correspondence between the applicant and the HSE.

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 Review

This review is concerned solely with the question of whether the HSE has fulfilled the requirements of section 18 of the FOI Act in relation to the applicant's request for a statement of reasons for certain matters relating to a claim for incremental credit as set out in her original requests.

Preliminary Matters

The applicant raised a number of concerns in connection with the manner in which the HSE processed her FOI requests. This review has been conducted under section 34 of the FOI Act and as such, the scope of the review is confined to the matter identified above. An investigation into such matters as identified by the applicant, if it were deemed necessary, would have to be carried out under section 36 of the FOI Act. No such investigation is proposed in this case.

Analysis and 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 as well as a statement of any findings on any material issues of fact made for the purposes of that act. 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 stated in Case No. 99212:

"[S]ection 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 follows 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. There will be many instances where a number of secondary actions/decisions are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. While the person may be entitled to a statement of reasons for the substantive decision, this Office considers that section 18 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision.

Furthermore, in Case No. 031015, the Commissioner explained that the requirement on a public body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or had been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process. The Commissioner stated

"What section 18 requires is that the head provide a statement of reasons which adequately explains why the body acted as it did. For example, if a person applies for a statement of reasons as to why his/her application for payment of a grant was refused having been considered by a committee of, say, three officials, then an adequate statement will explain why the committee, on behalf of the public body, decided that payment should be refused (i.e. the act) and what facts were relied upon by the committee in making the decision to refuse payment. Section 18 does not, in my view, require that each of the three members of the committee should individually explain their reasons for arriving at the decision."

It seems to me that the substantive act of the HSE in this case was its decision to refuse the applicant's claim for incremental credit as set out in its letter of 9 March 2012 to the applicant. It further appears that one of the key concerns of the applicant is that she believes the HSE was incorrect in refusing to grant incremental credit in accordance with the provisions of Department of Health Circular 10/71. As I have outlined above, during the course of the review Mr Campbell of this Office invited the applicant to refine her application for a statement of reasons and she did so in her response dated 12 March 2015. I should explain that while Mr Campbell was, in essence, attempting to clearly identify the substantive action for which a statement of reasons might be required, such clarification as provided by the applicant is relevant only where the request for a statement of reasons is contained within the original requests to the HSE. It is not open to this Office to review a matter that was not considered by the public body in the first instance. Nevertheless, having carefully examined the requests made in this case, I am satisfied that they contain a request for a statement of reasons as to why the HSE refused to grant incremental credit in accordance with Circular 10/71.

In its decision on the applicant's request, the HSE provided responses to the majority of the applicant's requests for explanations of various matters. In doing so, it stated its understanding that the applicant was seeking incremental credit for her service as a teacher in the UK and Ireland and that it did not accede to that claim as it did not consider the service as relevant to the role she applied for and took up. It further stated that it did not consider Circular 10/71 to apply to the applicant's appointment as that Circular applies when one is promoted within the public service.

The applicant is apparently of the view that the HSE was wrong to make such a finding. It seems to me that she is, in essence, seeking to use section 18 to challenge that decision by asking the HSE to address the many issues she believes to be relevant to the decision, having regard to Circular 10/71. Section 18 is not concerned with the appropriateness, or otherwise, of administrative actions taken by public bodies, nor does this Office have a role in examining such matters. If a public body explains why it acted as it did at the time, then that is the end of the matter as far as section 18 is concerned, regardless of whether or not the act is subsequently found to have been inappropriate. In my view, the HSE has clearly explained why it refused to grant incremental credit in accordance with Circular 10/71. As such I find that it has provided an adequate statement of reasons for that act.

On the matter of whether the HSE is required to respond to each of the explanations required by the applicant in her letters of 18 February 2014, I find that it is not. I am satisfied that the applicant has not identified any further acts of the HSE in which she has a material interest that had the consequence of conferring or withholding a benefit. Accordingly, I find that the HSE has fulfilled the requirements of section 18 of the FOI Act in this case.

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 HSE 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.

Stephen Rafferty
Senior Investigator