Whether AIT complied with the provisions of section 10 of the FOI Act in responding to the applicant's request for statements of reasons relating to correspondence concerning AIT's efforts to secure funding from the Higher Education Authority

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

The applicant made a request to AIT for statements of reasons under Section 10 of the FOI Act on 5 May 2016.  The request comprised twelve separate points, relating to matters which arose in 2011 and 2012 regarding the applicant's position within AIT, and relating to the contents of correspondence regarding funding arrangements. 
In its decision of 1 June 2016, AIT refused the request on the ground that the applicant was not affected by the issues referred to in the correspondence.  The applicant sought an internal review of that decision on 20 June 2016 and the AIT internal review decision of 7 July 2016 affirmed the original decision.  The applicant sought a review by this Office of AIT's decision on 2 November 2016.   

In conducting the review, I have had regard to the correspondence between the applicant and AIT in connection with his request. I have also had regard to the correspondence between this Office and both the applicant and AIT on the matter. I have decided to conclude the review by making a formal, binding decision.
Scope of Review
This review is concerned solely with the question of whether AIT complied with the requirements of section 10 in respect of the applicant's request for statements of reasons.

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."

"Benefit" is defined at section 10(13) of the Act 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 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. Insofar 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 including, in particular, the following principles:

There are many acts/decisions taken by FOI bodies where section 10 has no relevance. The Oireachtas could not have intended that FOI 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 body. There will be many instances where a number of secondary actions/decision 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. However, 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.

The requirement on the 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. What section 10 requires is that the head provide a statement of reasons which adequately explains why the body acted as it did.

Taking section 10 as a whole, 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 10 does not apply to that act.

The appropriateness, or otherwise, of administrative actions taken by FOI bodies is not relevant for the purposes of section 10. Indeed, the remit of this Office does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought under section 10. Thus, even if the act or decision in question was somehow flawed, that would not be something that this Office could require the FOI body to rectify. 

In cases where the FOI body has refused to provide a statement of reasons, the Commissioner's review is concerned with whether the FOI body was entitled to refuse to provide the statement of reasons.  In cases where the applicant is not satisfied with statement of reasons provided, the Commissioner's role is confined to deciding whether the FOI body has complied with the requirements of section 10 of the FOI Act i.e. is the statement given adequate? 

Section 10(12) provides that an application under section 10 shall be made within 12 months after the date on which the person who is affected by the act becomes aware of it.  While the correspondence to which the request for statements of reasons relates dates from 2011 and 2012, the applicant has demonstrated that he only became aware on it on 20 May 2015.  I accept that he has made his request for statements of reasons within the timeframe provided in the FOI Act.

The twelve "acts" for which the applicant is seeking statements of reasons stem from correspondence concerning AIT's efforts to secure funding from the Higher Education Authority as a result of legal costs incurred in relation to its treatment of surplus staff. Essentially, the applicant wants AIT to explain why it did not include certain information relating to him in the correspondence which he believed to be relevant to the matter. He also wants AIT to explain the funding arrangements that were subsequently made.

As I have outlined above, to be entitled to a statement of reasons, the applicant must have been affected by the act for which a statement is sought and must have a material interest in a matter affected by that act. I have also explained that to have such a material interest, I would expect the applicant to be able to show that the consequence or effect of the act may be to confer on or withhold from him a benefit without also conferring it on or withholding it from persons in general.

It seems to me that the manner of AIT's application for funding and the subsequent funding arrangements are not matters that have affected the applicant, nor does he have a material interest in those acts. In any event, the "acts" identified by the applicant are not "acts" or "decisions" of AIT that can reasonably be described as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit.

Accordingly, I find that AIT was not required, under the provisions of section 10 of the FOI Act, to provide the statements of reasons sought. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of AIT.  I find that AIT was not required, under section 10, to provide the statements of reasons sought.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision.  In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal. 

Stephen Rafferty
Senior Investigator