Whether Irish Water has fulfilled the requirements of section 10 of the FOI Act in relation to the applicant's request for statements of reasons in connection with a number of matters relating to the installation of water meters in a small development of six houses, one of which he owns

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 16 February 2015, the applicant applied to Irish Water under the FOI Act for three statements of reasons in relation to a number of matters relating to the installation of water meters in a small development of six houses, one of which he owns. The applicant is clearly of the view that Irish Water failed to comply with relevant statutory provisions when installing the meters and the statements of reasons sought essentially related to what he considered to be compliance failures by Irish Water. He sought reasons as to why a statutory notice was not sent to him before the installation of the meters, why the meters were installed without complying with relevant statutory provisions and why Irish Water's replies to him attempted to convey compliance with the relevant statutory provisions.

In its decision of 18 March 2015, Irish Water provided the applicant with a statement of reasons covering each of the matters raised in his request. The applicant sought an internal review of Irish Water's decision on 2 April 2015. On 20 April 2015 Irish Water refused the applicant's internal review request as it considered that his internal review request did not come within the grounds for internal review provided for in section 21(1) of the FOI Act but rather sought to dispute the statutory basis on which the meters were installed. The applicant applied to this Office for a review of Irish Water's decision on 28 April 2015.

In conducting this review I have had regard to Irish Water's communications with the applicant and to communications between this Office and both the applicant and Irish Water on the matter.

Scope of the Review

This review is concerned solely with the question of whether Irish Water has complied with the provisions of section 10 of the FOI Act in relation to the applicant's request for statements of reasons in connection with the installation of water meters in the development in question.

Preliminary Matters

Before I address the substantive issues, I would like to make two preliminary points. Irish Water refused the applicant's internal review request on the ground that his request did not seek a review of a decision regarding the release or refusal to release records in response to his original request, but rather disputed the legal basis upon which Irish Water was relying for installing a meter at his property. While I do not disagree that the applicant was disputing Irish Water's legal authority, he was entitled to apply for an internal review of the original decision on the ground that the statements of reasons given were not satisfactory.

Section 21(1)(c) provides for a right of internal review of a decision under section 10 in relation to the contents of a statement furnished or in relation to a decision to refuse to provide such a statement. In so far as Irish Water failed to make a formal internal review decision, this failure can be treated as a deemed refusal of the applicant's internal review request, following which a requester is entitled to apply to this Office for a review of the deemed refusal.

Secondly, it is important to note that this Office has no role in examining how an FOI body performs its functions generally, or in regard to complaints against an FOI body. Furthermore, this Office's remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought.

Analysis and Findings

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI 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 10(5) provides that a person has a material interest in a matter affected by an act of an FOI 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.

Section 10(13) defines a "benefit" in relation to a person as including: (a) any advantage to the person; (b) in respect of an act of an FOI 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.

This Office has previously set out its approach to, and interpretation of, the equivalent provision of the FOI Acts 1997 & 2003 (Section 18). While not identical, section 10 is quite similar to that equivalent provision. In so far as it applies to this review, I am satisfied that the approach previously adopted remains relevant to my consideration of section 10 of the Act of 2014.

The requirement to provide a statement of reasons does not apply to every action of an FOI body. Taking the section as a whole, this Office takes the view 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 the FOI body is not required to provide a statement of reasons for that act.

It follows that a key consideration as to whether a person is entitled to a statement of reasons for an act of an FOI 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 10 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.

Having carefully considered the "acts" identified by the applicant, I am satisfied that the acts in question did not have, and could not have had, the consequence or effect of conferring on, or withholding a benefit from the applicant. Furthermore, I do not accept that the reasons for the acts had a bearing on the outcome of whether the applicant received or did not receive a benefit or suffered a loss or a penalty or other disadvantage. For example, the applicant sought a statement of reasons as to why the meters were installed without complying with relevant statutory provisions. While Irish Water dispute that the meters were installed without complying with relevant statutory provisions, the fact remains that the compliance or non-compliance did not confer on or withhold from the applicant a benefit.

I find, therefore, that the applicant is not entitled to the statements of reasons sought, as set out in his original request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby vary the decision of Irish Water in this case and find that the applicant is not entitled to a statement of reasons for the acts identified in this case, as he does not have a material interest in the matters affected by the acts or to which they relate.

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator