Whether the CPSA was justified in its decision to refuse the applicant's request for a statement of reasons

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

Background

In his FOI request of 16 September 2016, the applicant sought a statement of reasons as to "why Mr. Patterson did not respond to my request to give evidence to the Workplace Relations Commission today as I had sought, see my email below dated 7 September 2016." In its decision of 10 October 2016, the CPSA refused the request on the grounds of section 10(7) of the FOI Act. The applicant sought an internal review. The CPSA internal review decision in November 2016 affirmed the original decision. The applicant sought a review by this Office on 5 May 2017.

During the course of the review, in accordance with this Office's normal procedures, the CPSA was asked for a submission in support of its position. In its response the CPSA advised that it had reviewed the matter and had provided the applicant with the information sought. The applicant was not satisfied that the information provided addressed the issue for which he had sought a statement of reasons. The information given set out why the CPSA decided not to provide evidence at the Workplace Relations Commission.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of CPSA, and to the provisions of the FOI Acts. 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 the CPSA was justified in refusing to provide a statement of reasons as sought by the applicant.

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.

Having carefully considered the matter, I am satisfied that the question of whether or not the CPSA responded to the applicant is not the exercise of a power or function of the CPSA. The issue of whether the applicant ought to have had a response to his request in relation to the Workplace Relations Commission is not a relevant consideration in applying section 10. I am not in a position to comment on the adequacy of the CPSA's explanation given to the applicant in the course of this review, as it does not come within the scope of the review. I am, therefore, satisfied that the applicant does not have a material interest in a matter affected by the act for which the statement of reasons was sought as the consequence or effect of the act cannot be said to confer on, or withhold from, the applicant a benefit.

Accordingly, I find that the CPSA was not required, under the provisions of section 10 of the FOI Act, to provide a statement of reasons in response to the original application of 16 September 2016.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the refusal of the CPSA to provide a statement of reasons to the applicant.

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.

Elizabeth Dolan
Senior Investigator