Whether the Council was justified in refusing to provide statements of reasons for various acts relating to the blocking of the laneway at the rear of the applicant’s property by a third party on the ground that he was not entitled to same

3 October 2019

Background

This review has its background in a complaint the applicant made to the Council in 2007 in connection with the placement by a third party (a sports club) of concrete structures in a laneway at the rear of his property, thereby blocking his access to the laneway. The Council informed the applicant at the time that the issue was a civil matter and that it would be taking no further action.

It appears that the applicant subsequently made a complaint to the Council in May 2018 in relation its alleged failure to maintain and protect what he regarded as “an established public right of way” at the laneway. It further appears that in its response to the complaint, the Council referred to its engagements with the applicant in 2007 to suggest that the matter had already been investigated.

I understand that the applicant subsequently obtained access to the Council’s file on the 2007 matter that caused him to have concerns about the manner in which the Council handled his 2007 complaint.

On 7 January 2019, the applicant wrote to the Council enclosing a copy of an application he had made by letter dated 14 December 2018 under section 10 of the FOI Act for reasons for various decisions and acts of the Council. He stated in his letter of 7 January 2019 that his material interest grounding the application was based on the loss and damage caused by the Council denying that a public right of way exists at the laneway in question. His application dated 14 December 2018 comprised at least thirty separate parts, all of which relate to manner in which the Council handled his complaint regarding the blocking of the laneway.

The Council did not treat the application as an application under section 10 of the FOI Act. Instead, it decided to grant access to what it considered to be certain relevant records and it provided responses to 30 parts of the applicant’s letter of 14 December 2018.

The applicant sought an internal review of the Council’s decision on 7 February 2019. Among other things, he argued that the Council had given no satisfactory replies to any of his requests for reasons. On 28 February 2019, the Council decided to affirm the original decision. On 22 March 2019, the applicant sought a review by this Office of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and the Council as set out above and to the correspondence between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council has complied with the requirements of section 10 of the FOI Act in response to the applicant’s application for reasons for various acts of the Council relating to the blocking of the laneway at the rear of his property by a third party.

Preliminary Matter

It is important to note at the outset that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 10

Section 10(1) 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. For the purposes of section 10, an act of the body includes a decision of the 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."

Section 10(12) provides that an application under section 10 must be made within 12 months after the date on which the person who is affected by the act becomes aware of it.

Under subsection (13), benefit is defined as including any advantage to the person, or the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

General Principles

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. 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.
• 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.

Analysis

In its submission to this Office, the Council said that it did not process the request in accordance with section 10 of the FOI Act as it was not satisfied that the applicant was affected by an act of the Council and had a material interest in a matter affected by the act. It argued that no acts of the Council affected the applicant and that the acts he identified are not acts or decisions that can reasonably be described as the exercise (or the refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. It further argued that he did not make his request within the timeframe provided under section 10(12) of the Act. It stated that it has, nevertheless, addressed in detail the issues raised by the applicant.

In essence, the applicant’s primary concern is that the Council failed to properly consider the complaint he submitted to the Council in 2007. He stated that he submitted the complaint with the sole intention of having the concrete structures the sports club had placed in the laneway removed by the Council after it had investigated the complaint and found that the laneway was part of a public right of way. As I have outlined above, he indicated in his letter of 7 January 2019 to the Council that his material interest grounding the section 10 application was based on the loss and damage caused by the Council denying that a public right of way exists at the laneway in question.

The applicant appears to be of the view that once he can show a material interest in a matter affected by the substantial act of the Council, then he is entitled to statements of reasons for all of the related acts of the Council that relate to that substantive decision. If this is the case, then he is mistaken. Based on the principles established by this Office as outlined above, to be entitled to a statement of reason for various acts of the Council, the applicant would have to be in a position to show that he has a material interest in a matter affected by each of those acts or to which they relate, i.e. that consequence or effect of the acts may be to confer on or withhold from the applicant a benefit.

I am satisfied that he has not done so, i.e. that he has not shown that he has a material interest in a matter affected by the related acts in question or to which they relate as none of the acts, of themselves, can 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.

On the matter of the substantive act identified by the applicant, namely the Council’s refusal to arrange for the removal of the concrete structures from the laneway following receipt of his complaint, I find that the Council was justified in finding that he failed to submit his section 10 application within 12 months of becoming aware of that act, as required by section 10(12). He has been aware of the Council’s position on that matter since 2007. The fact that he may have recently come to learn of additional informational which he considers to be of relevance to how the Council handled his complaint does not change that.

In any event, it seems to me that the applicant is well aware of the Council’s reasons for refusing to arrange for the removal of the concrete structures. While he may believe that the Council acted inappropriately or incorrectly, this Office has no role to play in considering such matters.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse to provide the applicant with statement of reasons for various acts relating to the blocking of the laneway at the rear of his property by a third party.

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