Whether the Council has complied with the requirements of section 10 in respect of the application for a statement of reasons as to why the relevant tender process was collapsed.

11 October 2022

Background

The applicant, a real estate investor, participated in a tender process run by Dublin City Council for the sale and development of a Hotel. During the process, the applicant was informed by the Council, that its bid was not the preferred bid, and that another bidder had been selected as the preferred bidder. High Court proceedings were brought against the Council by the applicant on foot of this. The proceedings challenged the process and outcome of the tender. Following this, by letter dated 14 September 2021, the applicant was informed that DCC was cancelling the tender process.

In a request dated 15 November 2021, the applicant sought access to records in relation to the -�Collapse decision-� taken by the Council. The applicant also sought a written statement of reasons under section 10 of the FOI Act and findings on material issues of fact. The request set out that the applicant was a party affected by the Collapse decision, and had a material interest in the matter. On 21 December 2021, an internal review request  was submitted; the applicant argued that the Council had failed to address the section 10 element of their request within the prescribed timeline of four weeks. On 22 December 2021, the Council provided its decision in respect of the section 10 request. The decision set out the requirements under section 10(5), and clarified that it was the Council-�s position that the decision had an equal effect on all participants. Accordingly, it stated that the Council was of the view that the applicant did not have a material interest, as provided for under section 10(5), in the decision to collapse the process.

On 24 January 2022, the Council issued its internal review decision in respect of both requests. In respect of the statement of reasons under section 10, the Council referred the applicant to the letter, which issued on 22 December, and stated that in addition to the information provided in that letter, the decision to collapse the competition was made by DCC following legal advice.

On 24 February 2022, the applicant sought a review by this Office of the Council-�s decision. The application alleged that the statement provided by the Council was inadequate.

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 submissions made by the relevant parties who made submissions, the applicant-�s comments in their application for review and to the submissions made by the FOI body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

The request for access to records is currently the subject of a separate review.

Scope of Review

This review is concerned solely with whether the Council has complied with the requirements of section 10 in respect of the application for a statement of reasons as to why the relevant tender process was collapsed.

Preliminary Matters

This Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

The Commissioner considers that section 10 is not an alternative appeal mechanism. He considers that the purpose of section 10 is to ensure that such reasons for an act as may be identified are conveyed to the applicant and, where reasons cannot be identified, it is not the purpose of section 10 to require the creation, after the event, of such reasons.

Analysis and Findings

Section 10

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. This Office considers that a statement should be intelligible and adequate having regard to the particular circumstances of the case. It should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However, a statement should not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision.

It is important to note that section 10 is not concerned with the appropriateness, or otherwise, of administrative actions taken by public bodies, nor does the Commissioner have a role in examining such matters. Section 10 is solely concerned with providing the reasons for the act or decision, and any findings on any material issues of fact made for the purposes of the act or decision concerned. Crucially, this Office has no role in determining whether the decision or act of the FOI body was justified. It is sufficient, for the purpose of compliance with section 10, that the body adequately explains why it acted as it did.

In the request for a statement of reasons, which issued to the Council, the applicant sought a statement in writing of:

1. The reasons for the act; and

2. Any findings on any material issues of fact made for the purposes of the Act.

In the statement of reasons, which the Council provided to the applicant, it set out that the Collapse decision was taken pursuant to the rights identified as part of the original brief, and had an equal effect on all participants. The Council clarified that it was of the view that the applicant did not have a material interest. However, as set out above, the letter stated that the Collapse decision was taken as a result of the High Court proceedings initiated by the unsuccessful bidder, and that while the Council rejected the claims made in the proceedings, it felt that the existence of those proceedings would cause significant delay to the advancement of the project.

Submissions of the parties

The Council outlined that it did not originally believe that the applicant was entitled to a statement of reasons, having regard to section 10(5) of the FOI Act. This provides that a person has a material interest in a matter affected by an act of an FOI body, if the consequence or effect of the act may be to confer or withhold a benefit from persons in general or a class of persons which is of significant size. The Council clarified that the decision maker in this case felt the decision had an equal effect on all participants and as such the material interest may not apply. The decision maker nevertheless set out the reasons to collapse the process. The submissions state that it held a meeting via Microsoft Teams for the purpose of discussing the proceedings issued by the applicant against the Council. It was at this meeting that the decision to collapse the process was taken. The Council argues that while it rejects the claims made in the aforementioned proceedings, it was felt that the existence of same would cause significant delay to the advancement of the project. As a result, the process was ended. The Council sets out its view that a statement of reasons has been provided in so far as is possible.

The applicant contends that the consequence of the collapse of the relevant process does not affect -�persons in general-� or -�a class of persons which is of a significant size-� and of which the applicant is a member. The applicant maintains that the consequence of the decision principally affected two bidders, the applicant and the preferred bidder only. The applicant has further stated that the two parties were affected in different ways. The consequence of the collapse of the process was that the applicant abandoned certain aspects of its claims in legal proceedings between it and the Council, which the applicant would have liked the opportunity to pursue in its proceedings.

In respect of the reason given, the applicant has also stated that it suspects that there may have been other reasons to collapse the process which were not related to the instigation of legal proceedings. The applicant has queried why there is no recording or minutes of the relevant meeting where the decision to collapse the process was taken.

Further clarity was sought from the Council following this exchange with the applicant. The production was requested of any records in which the decision and the reasons for the decision were recorded. In its response, the Council clarified that the meeting at which the decision to collapse the process was taken, was convened via an online meeting platform. It clarified that it was attended by external legal representatives. The attendees discussed the fact that legal proceedings had been instigated by the unsuccessful bidder, and received advice about the matter. The management in attendance agreed to collapse the process. The Council maintains that there are no minutes of this meeting nor was it recorded, and that the only thing in writing subsequent to that meeting was the letter to collapse the process, which issued to all participants.

Analysis

In respect of the Council-�s argument that the collapse of the process had an equal effect on all participants, I believe that the collapse of the process was a direct consequence of legal proceedings undertaken by the applicant against the Council. I believe that the effect of the Collapse decision on the applicant was significant, as outlined above, and not the same as the impact on all other parties to the process. As such, I find section 10(5) of the FOI Act to be applicable in the circumstances.

Turning to the adequacy of the statement provided, I must consider whether it meets the requirements set out under section 10(1) of the FOI Act, which are that the statement of reasons provided by the Council must contain the reasons for the act, and any findings on any material issues of fact.

Before I consider this, it is worth noting 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 taken. I must therefore consider whether the statement allows the applicant understand without undue difficulty why the Council acted as it did, and identify the criteria relevant to the act and explain how it affected the act. On consideration of the Council-�s email to the applicant, I am of the view that it has satisfied the requirements of section 10(1) of the FOI Act.

The applicant has made it clear that it is not satisfied with the Council-�s statement, and considers that there may be additional details, section 10 is concerned with providing the reasons for the act or decision and any findings on any material issues of fact made for the purposes of the act or decision concerned. If the body explains why it acted as it did, this Office has no further role in the matter.

In conclusion, therefore, I find that Dublin City Council has complied with the requirements of section 10 in relation to the application for the statement of reasons sought.

 Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Dublin City Council in this case. I find that it has complied with the provisions of section 10 of the Act in response to the application for a statement of reasons as to why it collapsed the process.

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.
 
 

Deirdre McGoldrick

Senior Investigator