Whether the Department provided an adequate statement of reasons under section 10 of the FOI Act as to why it determined that there had been an overpayment of rent supplement and whether the applicant was entitled to further statements of reasons concerning the Department contacting her in relation to that overpayment

27 September 2019

Background

On 1 April 2019, the applicant applied to the Department for statements of reasons for various acts relating to the compiling of a debt owed by her to the Department. She sought reasons for the following: 

1. compiling the debt
2. contacting her through text message on a specified date
3. contact from the Department since her enquiries with a staff member on a specified date

She also sought information on the debt, to include components of the debt.

The Department treated the application as a request for records and on 1 May 2019 it decided to part-grant the request. It released a copy of the applicant’s rent file with some information redacted under section 37 of the FOI Act. The Department explained in its decision that all contact referenced by the applicant was in pursuit of her outstanding overpayment balance and was a request to her to contact the Department in relation to same.

The applicant sought an internal review of the decision, and on 11 June 2019 the Department affirmed its original decision. On 1 July 2019, the applicant sought a review by this Office of the Department's decision.

During the course of the review, the Department provided the applicant with a statement of reasons as to the basis on which it determined that there had been an overpayment of rent supplement in her case. Following receipt of that statement, the applicant made further comments. I have now decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and the Department as set out above and to the communications between this Office and both the Department and the applicant on the matter.

Scope of Review

During the course of this review the applicant stated that she had not requested records from the Department. Accordingly, this review is concerned solely with the question of whether the Department has provided an adequate statement of reasons for part 1 of the request for the purposes of section 10 of the Act and whether the applicant is entitled to statements of reasons for parts 2 and 3.

Preliminary Matters

Before I address the substantive issues arising in this case, I wish to make a number of preliminary comments, the first of which concerns how the Department processed the applicant’s request. Section 10 of the FOI Act provides for a right of individuals to be given reasons for certain acts of FOI bodies that affect them. The Department did not treat the applicant’s email of 1 April 2019 as an application for statements of reasons under section 10.

In my view, it is clear from the applicant’s email that she was seeking to exercise her rights under section 10, notwithstanding that she did not expressly state that the application was being made under section 10.

Under section 10(11) of the Act, an application which does not purport to be an application under section 10 but which applies for information, access to which can be obtained only be way of an application under section 10, the body must offer assistance to the individual in question in the preparation of such an application. I expect the Department to pay closer attention to future applications made under the Act for statements of reasons to determine if they should be treated as applications under section 10.

Secondly, during the course of the review, the applicant expressed various concerns about the fairness of the review process. While I do not propose to engage with those arguments in this decision, I can confirm that I have considered the applicant's arguments and do not accept them. I am satisfied that the applicant was given a reasonable opportunity to comment on all material issues arising.

Thirdly, the applicant also objected to the publishing of anonymised decisions on the Office’s website. The applicant was notified that this Office is legally required to publish all binding decisions and was offered the opportunity to withdraw her application for review in this case, which she declined. As a result, this review has progressed to a legally binding decision and has been published on this Office’s website in the usual manner in due course.

Finally, I should explain that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

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."

Taking section 10 as a whole, this Office considers that 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.

There are many acts or 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.

Each part of the applicant’s request relates to the compiling of a debt owed by the applicant to the Department. In the statement of reasons provided, the Department explained the basis on which it was determined that there had been an overpayment of rent supplement. It provided details of how the overall overpayment was calculated and of the steps it took to inform the applicant of the overpayment.

Having reviewed the statement provided, I find that it is an adequate statement for the purposes of section 10 of the FOI Act.

With regard to parts 2 and 3 of the applicant’s request, the applicant failed to identify any benefit conferred or withheld as a result of being contacted the Department. While the applicant may not be satisfied with the circumstances of the Department’s contact with her, it is not for this Office to make any findings as to whether or not that contact was appropriate. Accordingly, I am of the view that parts 2 and 3 of the applicant’s request do not comprise acts or decisions of a public body conferring or withholding a benefit which requires a statement of reasons in relation to the final two parts of the applicant's request. Accordingly I find that the applicant is not entitled to statements of reasons in respect of those parts of her request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department on the grounds that it has provided the applicant with an adequate statement in relation to part 1 of her request. I find that she is not entitled to statements of reasons for parts 2 and 3 of her request.

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