Case Number: 170097

Whether the Hospital was justified in deciding to refuse to provide the applicant with a statement of reasons under section 10 of the FOI Act on the ground that the question posed in his request falls outside the scope of section 10

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 26 January 2017, the applicant emailed the Hospital's Chairman seeking a response, under section 10 of the FOI Act, to the question "Do you believe your hospital CEO is capable of being CEO of SVUH given he is a full time clinician?". It appears that the applicant made the request in light of difficulties he has encountered in the past in his dealings with the Hospital.

On 3 February 2017, the Hospital refused the request on the ground that the question falls outside the scope of section 10. The applicant sought an internal review of the Hospital's decision on 8 February 2017, in which he also sought response to a number of additional questions. On 22 February 2017, the Hospital affirmed its original decision. The applicant sought a review by this Office of the Hospital's decision on 23 February 2017.

In conducting this review I have had regard to the correspondence between the Hospital and the applicant on the request, and to correspondence between this Office and both the applicant and the Hospital on the matter.

Scope of Review

The scope of this review is concerned solely with the question of whether the Hospital was justified in refusing the applicant's request for a statement of reasons on the grounds that his request falls outside the scope of section 10.

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. However, the requirement to provide a statement of reasons does not apply to every act of an FOI body. 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.

The applicant has not identified any specific act of the Hospital for which he requires a statement of reasons. As such, I am satisfied that the Hospital was justified in deciding that it was not required to provide a statement of reasons under section 10 or to answer the question posed.

For the benefit of the applicant, I should explain that while the FOI Act also provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. I understand, in any event, that the Hospital has previously released records to the applicant on foot of a number of previous FOI requests.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital.

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