Whether the Department has complied with the requirements of section 10 of the FOI Act in response to the application for a statement of reasons for various acts connected with the applicant-�s applications for grant aid under the Native Woodland Conservation Scheme

13 June 2023

Background

On 24 June 2022, the applicant made a four-part request to the Forestry Service in the Department of Agriculture. The request was amended on 28 June 2022. Parts one and four of the request were for records, while parts two and three were for statements of reasons under section 10 of the FOI Act. This review is focused on parts two and three of the request; parts one and four will be dealt with in a separate review OIC- 129491. In parts two and three of the request, the applicant referred to two specific forestry licence application numbers and sought a statement of reasons for nine alleged acts of the Forestry Service in connection with these applications.

The Department did not issue a decision on the request in the statutory four-week timeframe and on 26 July 2022, the applicant sought an internal review of that effective refusal. As the Department again failed to issue a decision within the statutory timeframe, the applicant subsequently applied to this Office for a review of the deemed refusal of his request. On 4 October 2022, the Department issued a letter to the applicant setting out its effective position. On 6 October 2022, the applicant applied to this Office for a review of the Department-�s decision.

In submissions to this Office, the Department said that it did not accept that some of the acts for which the applicant had sought a statement of reasons were in fact acts for the purposes of section 10. The applicant was informed of this and given an opportunity to comment, which he did. I also noted that it appeared to me that an explanation for some of the acts for which he had sought a statement of reasons had been already provided to him in an internal review decision on the forestry application. The applicant said that he was not satisfied with the reasons provided to date and maintained that an explanation should be provided in relation of each of the nine actions listed.

In the circumstances, I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the submissions made by the applicant and by the Department, to the correspondence set out above, and to various records relevant to the forestry applications at issue.

Scope of Review

This review is concerned solely with the question of whether the Department has complied with the provisions of section 10 of the FOI Act in response to the application for a statement of reasons for various acts connected with two forestry applications.

Preliminary Matters

Before I consider the substantive issues arising, I would like to make three preliminary comments.

First of all, as set out above, the Department missed the statutory deadlines for responding to both the applicant-�s initial FOI request and his request for an internal review. This is, regrettably, not the first time such deadlines have been missed by the Department in respect of an FOI request made by this applicant. As this Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function and I must again remind the Department of its obligations to respond to requests within the timelines set out in the legislation.

Second, the applicant raised a number of concerns about the Department-�s handling of his applications to the Forestry Service, including accusations of bias, that his applications were not dealt with fairly, that fair procedures had not been followed and that he hadn-�t been given a right to reply. He also pointed to inconsistencies in the Forestry Service-�s approach to his applications and queried how some of the decisions were made. As has been explained to the applicant, 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. As such, we cannot examine the appropriateness, or otherwise, of the acts or decisions taken by public bodies for which the statements of reasons are sought.

Third, it is important to note that a review by this Office is considered to be -�de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.

Analysis and Findings

Section 10: Right of person to information regarding acts of FOI bodies affecting the person

Section 10 of the FOI Act provides that a person is entitled to a statement of reasons for an act of an FOI body where that person is affected by the act and has a material interest in a matter affected by the act or to which it relates. 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 such an act relates if the consequence or effect of the act may be to confer a benefit on, or withhold a benefit from, the person without also conferring the benefit 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(13) defines -�benefit-� in relation to a person 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 to the person, and (c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person. The statement of reasons must give the reasons for the act and any findings on any material issues of fact made for the purposes of the act.

Taking section 10 as a whole, the Commissioner considers 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.

This Office does not consider that the requirement to provide a statement of reasons applies to every action of an FOI body. It is our 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.

Accordingly, in order for a right to a statement of reasons to arise under section 10 of the FOI Act, the Commissioner must first be satisfied that the action complained of is an -�act-� (that is, the exercise of, or refusal to exercise, a power or function) for the purposes of that section. An application for a statement of reasons under section 10 of the Act must identify the particular act for which a statement of reasons is sought. Section 10 does not provide a mechanism for seeking answers to questions about what actions an FOI body did or did not take.

Furthermore, the Commissioner takes the view that section 10(5) excludes acts which have general applicability. Rather, the act must affect a person particularly, albeit not necessarily exclusively. Where the act of an FOI body affects a wide class of people (i.e. a class of significant size having regard to all the circumstances) and applies equally to all members of the class, an applicant who is a member of that class does not have a material interest.

Application under section 10

The specific actions of the Department in respect of which the applicant sought a statement of reasons under section 10 of the FOI Act are set out below. I have numbered them for ease of reference:

NWS1149 Review

1. The Forest Service said that the review decision was made based on the reviewer making a site visit and discussing the case with Forest Service colleagues.  Why were there no discussions with -� (1) the experienced native woodland conservation Forester who has managed the site for over 20 years, (2) the Ecologist who assisted with the application, (3) the land-owner (the land-owner is a Trust, and one of the Trustees has been described as -�one of Ireland-�s top Ecologists and communicators of nature-�)?

2. Refusal of grant-aid for planting.

3. Refusal to grant-aid Ground Preparation.

4. Refusal to grant-aid Water Protection Measures

5. Refusal to grant-aid deer-fencing

6. Refusal to grant-aid Other Operations

7. Failure to respond to e-mails

NWS1104 Approval

8. The decision that -�No operations are to take place during the breeding bird season-�.

9. The decision to not allow an increase in the estimated costs.

The Department-�s submissions

In its submissions to this Office, the Department said that it accepted that the decision to grant a forestry licence falls within the meaning of an act within section 10 and as a consequence, the decision to refuse certain elements of the grant aid sought in the application for these licences, in relation to planting, ground preparation, water protection, deer fencing and other operations, and the decision not to allow an increase in estimated costs also constitute acts within the meaning of section 10. In summary, it accepted that the above actions numbered 2 -� 6 and 9 constitute acts for the purposes of section 10.

However, the Department said that it did not consider that the decisions in connection with site visits for the NWS1149 review, failure by certain Department staff to respond to emails in connection with this file and the decision that no operations were to take place during the breeding bird season, were acts for the purposes of section 10 i.e. 1, 7 or 8.

The Department said that in its letter to the applicant of 4 October 2022 (which set out its effective position following the deemed refusal of the request), it provided reasons for the decisions taken in relation to both files and addressed each of the points made by the applicant, with some of the points grouped together under a single reply. It said that it believed the reasons provided to be very clear. It said that it accepted that the applicant was dissatisfied with some of the decisions taken but, in its view, the Forest Service staff acted with diligence and integrity in their decision making and at all times endeavoured to deliver the service to the highest standard possible.

The applicant-�s submissions

In relation to 1 and 7, the applicant said that he had a right to fair procedures and transparency and to have his affairs handled impartially. He said that the response from the Forest Service on his request for a statement of reasons was not meaningful and did not address the questions raised. He said that he was instructed to contact a named person with his concerns but that he never got a response and that he should be provided with a meaningful explanation for this.

In relation to actions 2-6, the applicant said that these activities for which he had been refused grant-aid are standard, eligible operations as listed in the Native Woodland Conservation Scheme rule and that he had proposed costings within accepted ranges. He said that the Forest Service should explain why grant aid was refused for these operations when they were allowed on other conservation applications, and that there must be a reasonable explanation as to why this application was dealt with differently.

He said that no -�bird breeding season policy-� (action 8) had been published by the Forest Service and queried why this restriction applied to this application and not others.  

As regards his request for reasons why an increase in costs was not allowed (action 9), he asked how it could be possible that an estimate could not be changed or revised, particularly when a scheme is -�cost-based-� with payment made on basis of receipts and invoices. He said that it didn-�t make any sense, and asked who reviewed the costs, who made the decision on it, what did they base their decision on, and was there something in the rules or the law that says estimates cannot change.

My analysis

Act of an FOI body

The first issue to be addressed in this decision is whether the actions, for which the applicant has sought reasons, are acts for the purposes of section 10. It is clear that the applicant is deeply frustrated with how his applications to the Forestry Service were handled but as I have said above, and as I explained to the applicant in the course of a number of phone conversations, this Office has no remit to investigate complaints with respect to actions taken, or not taken, by FOI bodies.

It seems to me that actions 1 and 7 for which the applicant has sought reasons, and which concern the Department-�s alleged failure to discuss aspects of the application with certain identified individuals and alleged failure to respond to emails, constitute steps or actions (or lack of steps or actions) taken as part of the decision-making process leading to the Department-�s exercise of a relevant function or power (i.e. the approval or refusal of forestry licence applications), or taken after the decision has been made, rather than the function or power itself. For this reason, I do not accept that they are acts for the purposes of section 10.

Action number 8 concerns a condition set down in the granting of the relevant forestry licence that no operations were to take place during the breeding bird season (1 March to 31 August inclusive). While the Department-�s position is that this is not an act for section 10 purposes, it did explain to the applicant in the letter of 4 October 2022 that the breeding bird policy was developed by qualified professional ecologists in collaboration with an environmental consultant involving extensive research and discussion and is designed to provide appropriate levels of protection for vulnerable species. The applicant said that he hasn-�t seen this policy and that it hasn-�t been published. Whether or not this is the case, it doesn-�t seem relevant to me for section 10 purposes. In these circumstances, it appears to me that this is a policy of the Department and a condition of the grant-aid in respect of this forestry application rather than a specific act which confers or withholds a benefit on the applicant. Therefore, I do not accept that it is an act for the purposes of section 10.

In relation to action number 9, the applicant queried why he was not allowed an increase in the estimated costs in respective of the relevant forestry application. He pointed to the long delay in between making the original application and eventual approval, and said that the costs increased in the course of this delay and that the original estimate was no longer relevant. In its submissions, the Department accepted that this was an act for the purposes of section 10; however, I am not convinced that it is. The Commissioner takes the view that 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".

I asked both the Department and the applicant to provide more information as to how this particular issue arose i.e. did the applicant make a request or application in respect of an amended budget, or does such a process exist, and was a decision on such an application or request communicated to the applicant? The Department said that any cost, regardless of when it is proposed, is at the discretion of the Department and that all operations and proposed costs are assessed by the Department. It said that the approval outlines what operations/costs are accepted on a case by case basis. In the letter of 4 October 2022, it said that on reviewing the costs, it found that an increase was not warranted. The applicant said that it is a cost-based scheme and that payments are made following submission of relevant invoices/receipts etc.

On the balance of probabilities, and with reference to sections 10(5) and 10(13), I am not satisfied that it has been established that the failure to increase the costs to take account of the delay in processing the application, constitutes an act for the purposes of section 10. I find that it has not been shown that the refusal to increase costs was an act withholding a benefit from the applicant, that was not also withheld from persons in general or a class of persons of significant size, and that he had requested it. Rather, it seems to me that the applicant was asking a more general policy question as to why the Department does not adjust the approved funding amount to reflect potentially altered costs due to the passage of time. I find that action number 9 is not an act for the purposes of section 10.

Finally, I do accept that actions 2-6 are acts for the purposes of section 10. While they are sub-parts of the overall decision on the forestry application, I accept that the applicant has a material interest in each sub-part in that they each represent a benefit which he requested and which was withheld from him, without also withholding it from persons in general or a class of persons of significant size.

Adequacy of the statement of reasons

The remaining question, therefore, is whether the statement of reasons provided by the Department in respect of actions 2-6 was adequate for the purposes of section 10.

The Commissioner takes the view that 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. It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However, the Commissioner does not consider that a statement should necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision. Essentially, a statement of reasons should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did.

In his application under section 10, the applicant made a number of detailed points setting out why he believed the Department-�s decisions in respect of actions 2-6 to be wrong. In its letter of 4 October 2022, the Department provided a single joint response to the request for reasons for these five acts. It said that it had considered the points made by the applicant and discussed them with the regional inspector. It said that the Native Woodland Scheme was a cost-based scheme and that, upon review, the Department found that the costs claimed would not be necessary for the successful completion of the project. It said that in carrying out such reviews, the Department was obliged to ensure that value for money considerations were met in relation to payments under the Department-�s schemes.

Notwithstanding the above explanation, the applicant was previously issued with an internal review decision on the forestry application on 7 March 2022. In this letter, each of the five acts were addressed in turn and an explanation provided for why grant aid was refused for (2) planting, (3) ground preparation, (4) water protection measures, (5) deer fencing and (6) other operations. While section 10 requires that a statement be -�in writing or such other form as may be determined-�, this does not mean that an additional written statement must be provided where the reasons for the act are already contained in written form and details of same have been made known to the applicant. While the Department did not explicitly reference the letter of 7 March 2022 in its submissions, it did provide this Office with a copy of the letter and, considering thede novonature of reviews by this Office, I am satisfied that I can take this letter into account. I also notified the applicant of this in the course of the review.

In examining the 7 March 2022 letter, it seems to me that, apart from in respect of (4), an adequate statement of reasons has already been provided to the applicant. I am satisfied that the reasons given for the acts are clear and enable the applicant to understand without undue difficulty why it acted as it did. Clearly, the applicant disagrees with the Department-�s position for a number of different reasons, and has further questions as to the basis for some of the reasons given, but that does not negate the fact that the reasons have been given to him. It is important to note that section 10 is not an alternative appeal mechanism and the Commissioner has no role in determining the appropriateness, or otherwise, of the acts for which reasons have been sought.

Finally, I note that in explaining why the applicant was refused grant aid for (4) water protection measures, the Department simply said that -�the best water protection measure here would be to leave the woodland as it is-�. It did not, however, explain why it believed this to be the case. In my view, this explanation is not adequate; it is not sufficiently clear why the Department made this decision. An adequate statement should contain both the reasons for the Department-�s decision not to award grant-aid for water protection measures, and any findings on any material issues of fact made for the purposes of the decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I affirm the deemed refusal of the Department to provide a statement of reasons for the actions numbered as (1), (7), (8) and (9) in the applicant-�s request on the basis that these actions are not acts of the Department within the meaning of section 10, and as such no entitlement exists to a statement of reasons for those actions. I affirm its decision in respect of actions (2), (3), (5) and (6) and find that it has complied with the provisions of section 10 in respect of these acts, by virtue of the statement of reasons given to the applicant on 7 March 2022 which I find to be adequate. However, I annul the Department-�s decision in respect of action (4), and I direct it to conduct a fresh decision-making process in respect of the application for a statement of reasons for the refusal to grant-aid water protection measures.

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.

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Emer Butler

Investigator