10 December 2018

Whether QQI is required, under section 10 of the FOI Act, to provide the applicant with statements of reasons for various comments made by QQI staff in correspondence with him and a named third party in connection with QQI's decision not to intervene in his complaint

Background

This review has its background in a grievance the applicant has with QQI concerning its handling of a complaint he made in 2014 against Dublin Business School (DBS). On 28 April 2017 the applicant submitted a detailed application to QQI for statements of reasons under section 10 of the FOI Act for nine specific comments made by QQI staff in a number of emails to him relating to its decision not to intervene in that complaint.

QQI issued a decision on 30 June 2017 in which it responded to the various parts. On 4 July 2017 the applicant sought an internal review of QQI's decision, in which he detailed issues he had with QQI's response. On 21 July 2017, QQI issued an internal review decision which was not in line with the requirements of the FOI Act as it was made by the same decision maker.  

On 18 October 2017, the applicant submitted another application under section 10 for statements of reasons for five comments made by the Chief Executive of QQI in a letter dated 11 September 2017 to ENQA (the European Association for Quality Assurance in Higher Education) in connection with the applicant's complaint. On 9 November 2017, QQI issued a decision in which it gave further explanations in relation to the comments in question. On 30 November 2017, the applicant sought an internal review of that decision. 

On 1 March 2018, the applicant sought a review by this Office of QQI's decisions in relation to both section 10 applications. Following correspondence with this Office, QQI issued a revised internal review decision on 9 April 2018 in respect of the first application in light of the fact that the internal review decision of 21 July 2017 had apparently been made by the same staff member who issued the original decision and not by a staff member of higher rank as required by the FOI Act. 

Following further correspondence with the applicant, this Office decided to proceed with its review of QQI's decision in respect of his first application. On 14 August 2018, Ms Hannon of this Office informed the applicant that the second application had been incorporated into the current review. 

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

Scope of Review

This review is concerned solely with the question of whether QQI is required, under section 10 of the FOI Act, to provide the applicant with statements of reasons for the various comments made by QQI staff in correspondence with him and with ENQA, in connection with QQI's decision not to intervene in his complaint.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, it is important to note that a review by the Commissioner under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner [2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

I also note that the applicant took issue with the fact that he had not been provided with a copy of QQI's submission before making further submissions to this Office. As Ms Hannon has previously explained to the applicant, while it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration. Reviews undertaken by this Office under the Act are inquisitorial, as opposed to adversarial, in nature. I am satisfied that all material points raised by QQI in this case have been provided to the applicant. 

The High Court has previously considered the fairness of this Office's procedures in the context of this Office's treatment of submissions. In The National Maternity Hospital v the Information Commissioner [2007] 3 IR 643, Quirke J. stated as follows:

"I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures."
 
Finally, the applicant expressed concerns about the manner in which QQI processed his FOI request. This review has been conducted under section 22 of the Act and is therefore confined to a review of the decision taken by QQI on the FOI request. 

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.

This Office has previously set out its approach to, and interpretation of, section 10 and has established the following principles:

• The applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of an FOI body; i.e. the applicant bears the burden of showing that he or she has a material interest in the matter. The FOI Act is silent as to the standard of proof which should apply in such cases. The Commissioner takes the view that the standard of proof required is that of "the balance of probabilities".
• The requirement to provide a statement of reasons does not apply to every action of an FOI body. The Commissioner takes the view that 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 FOI body and its officials. 
• Taking section 10 as a whole, the Commissioner-™s view is that the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit. 
• 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, the Commissioner 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. 
• The requirement on an FOI 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.
• A statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. The statement should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did. 

QQI's position is that no act or decision was taken within the meaning of section 10. Furthermore, it submits it did not provide the applicant with a statement of reasons within the meaning of the FOI Act. It stated that its intent was to assist the applicant by answering his queries. The applicant has made detailed submissions on matters arising in this review. While I do not propose to address every point made by the applicant in his submissions, I can confirm that I have had regard to his submissions in their entirety for the purposes of this decision. 

In his application for review of 1 March 2018 to this Office, the applicant identified what he described as five different 'positions' that he believes QQI took in respect of his complaint against DBS. He argued that the 14 comments for which he sought statement of reasons are encompassed by those five positions. His argument is that during the course of its engagements with him, QQI identified five different reasons, or 'positions', for its decision not to intervene in his complaint, and that he submitted the applications under section 10 to obtain the reasons why QQI took each of those five positions at various times.

The applicant argued that the 'positions' he identified are acts for the purposes of the FOI Act "on the basis that each processing (and processing at the very least could be as simple as a staff member running something through their head as they type the relevant sentence) was under a different set of criteria, at different points in time, over a lengthy time period, by four different staff members of increasing rank, but the processing could, in theory, have yielded a different outcome each time i.e. the ability to produce different outcomes makes them decisions to be made, or 'acts'."

I should state at the outset that the applicant did not, in his section 10 applications, seek statements of reasons for the five 'positions' he subsequently identified in his correspondence with this Office. Rather, he sought reasons for fourteen different comments made by QQI staff in correspondence with him and with ENQA. Having carefully examined each of those comments, I find that none of them are acts or decisions taken by QQI, for the purposes of section 10. The comments at issue cannot reasonably be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit. Indeed, I note that in his application for review, the applicant himself acknowledged that part (v) of his first section 10 application "probably wasn't even an act". As such, this finding, of itself, is sufficient for me to find that QQI was not required to provide the statements of reasons sought

I should add that even if the applicant had sought reasons for the five positions he subsequently identified, I would have found that QQI was not required to provide statements of reasons for those positions. Apart altogether from the fact that QQI would dispute that it took five separate decisions, it seems to me that the substantive decision taken by QQI in this case in which the applicant has a material interest was its decision not to intervene in his complaint. As such, the FOI Act entitles him to apply for a statement of reasons as to why QQI decided not to intervene in his complaint, if it has not already done so, as this is that act that arguably withheld from the applicant a benefit, although this is subject to the provisions of section 10(5), which 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 alleged positions identified by the applicant are not acts in which he has a material interest as they are not the acts that withheld from him a benefit. Rather, the positions are essentially explanations that the applicant believes QQI gave for the substantive act of not intervening in his complaint and he appears to be looking for an explanation for what he perceives to be inconsistencies in the different positions allegedly taken. This is not the purpose of section 10. Having said that, if, having received a statement of reasons for an act, an applicant believed that the statement provided did not adequately explain why the body acted as it did, he or she may apply to this Office for a review of the body's decision. However, no such issue arises in this case as the applicant did not seek a statement of reasons for the substantive act, namely QQI's decision not to intervene in his complaint.

Among other things, the applicant argued that even if there was no act or acts within the meaning of section 10, QQI did give him a statement of reasons. He argued that he submitted a valid section 10 request as QQI accepted and processed it as such three times and implicitly accepted his submissions as valid. He argued that his request is valid because the substantive act was outlined, implied, referred back to, and alluded to in all but name. He states that QQI processed that they were acts and this Office should not overturn that. I disagree. Regardless of whether QQI purported to give a statement of reasons under section 10, I have explained above that reviews to this Office are de novo and as such, I am not constrained by QQI's initial interpretation of the section 10 applications.

The applicant also argued that if his section 10 applications were not valid then QQI should have offered assistance under subsection (11). That subsection provides that where a body receives either

(a) an application purporting to be a section 10 application but which is not in the proper form, or 
(b) an application which does not purport to be a section 10 application but which applies for the information to which access can be obtained only by way of a section 10 application, 

the body must assist the applicant in the preparation of a such an application. Neither circumstance arises in this case. The applicant made a section 10 application in the proper form and identified it as a section 10 application. Subsection (11) does not oblige the body to assist the applicant in identifying the act for which a statement of reasons is sought

In conclusion, therefore, I find that the matters for which the applicant sought statements of reasons in this case are not acts of QQI for the purpose of section 10 and that QQI was, therefore, justified in deciding that it was not required, under the provisions of section 10, to provide the statements of reasons sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of QQI to refuse to provide the statements of reasons sought by the applicant under section 10 of the FOI Act on the ground that it was not required to do so. 

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