Whether the Commission was justified, under section 10(12) of the FOI Act, in refusing to provide the applicant with a statement of reasons for various acts on the ground that the application was not made within 12 months of the date on which he became aware of the acts

23 May 2023

Background

The applicant in this case was the subject of an investigation by the Commission, in accordance with section 23 of the Ethics in Public Office Act 1995 as amended by the Standards in Public Office Act 2001. On 6 December 2022, he applied to the Commission for a statement of reasons under section 10 of the FOI Act in respect of the following:

1. The specific reasons why the Inquiry Officer found that there was prima facie evidence to support a breach of section 170 of the Local Government Act 2001 in her Preliminary Inquiry Report;
2. The reasons why the Inquiry Officer decided that there was prima facie evidence to sustain the complaint that the applicant contravened section 4 of the Standards in Public Office Act 2001;
3. The reasons why the Commission, at its meeting in April 2021, decided to accept the Preliminary Inquiry Report which stated there was prima facie evidence to support a breach of section 170 of the Local Government Act 2001;
4. The reasons why the Commission formed the opinion and made the decision that the matter was one of -�significant public importance-� as provided for under section 4 of the Standards in Public Office Act 2001.

In a decision dated 16 December 2022, the Commission refused the application under section 10(12) of the FOI Act, which requires an application for a statement of reasons to be made within 12 months after the date on which the person who is affected by the act becomes aware of it. It said he was informed of the Commission-�s decision to proceed to an investigation in a letter dated 8 July 2021, that had attached to it a copy of the Preliminary Inquiry Report. On 4 January 2023, the applicant sought an internal review of that decision, following which the Commission affirmed its decision to refuse his application under section 10(12). On 4 February 2023, the applicant applied to this Office for a review of the Commission-�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 submissions made by the Commission and to the comments made by the applicant in his application for review and in the correspondence between the parties as set out above. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Commission was justified in its decision to refuse to provide the statement of reasons sought in this case.

Analysis and Findings

Section 10 of the Act provides, at subsection (1), 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. Subsection (13) provides that the term -�act-� in relation to an FOI body includes a decision of the body.

Paragraph (a) of subsection (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. Paragraph (b) of subsection (12) provides that, notwithstanding paragraph (a), where the particular circumstances warrant it, the public body may accept an application outside the time limit specified in that paragraph.

This Office 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. The FOI Act is silent as to the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required is that of "the balance of probabilities".

The acts identified by the applicant in this case are findings made by the Commission-�s Inquiry Officer and decisions taken by the Commission in connection with its investigation. He said the findings for which he sought reasons were part of the Commission-�s overall investigation process, which did not conclude until 5 January 2022. He argued that the acts in question would have had little or no effect on him if the Commission had not made findings against him in January 2022. On this basis, he suggested that his application of 6 December 2022 was made within the required 12-month time limit of becoming aware of the acts.

The applicant also argued that no proper reasons for the various acts were provided in the Report prepared by the Inquiry Officer or in the minutes of the meeting of the Commission dated 19th April 2021. He noted that subsection (12)(b) of section 10 allows an FOI body to accept an application outside the time limit specified and he argued that the statements sought should be provided as no proper reasons have been provided to date. He also argued that the Commission should be open, transparent, and fair in providing clear reasons for the important decisions it makes both during and at the conclusion of any process and that subsection (12)(b) allows it to act in an open, transparent, and fair manner outside of the 12-month time limit. Finally, he argued that failure by the Commission to provide proper reasons for its decisions can ultimately result in other persons having decisions made against them for which they too will also not be provided with adequate reasons for those decisions and that this creates a poor and unfair precedent.

In its submissions to this Office, the Commission said that having received and considered the Preliminary Inquiry Report prepared by the Inquiry Officer, it wrote to the applicant on 8 July 2021 to inform him that it had decided to commence an investigation into the complaints made against him. A copy of the Preliminary Inquiry Report was attached to the letter. Accordingly, it said that on receipt of this letter of 8 July 2021, the applicant would have become aware of each of the decisions for which he sought reasons in his section 10 application. It said that the immediate consequence of the decisions that are the subject of the application for a statement of reasons was that the applicant then became the subject of an investigation under the Ethics in Public Office Acts. It said that the Commission-�s decisions on foot of the investigation, as set out in its investigation report published in January 2022, are a separate matter with consequences distinct from those arising from the Commission-�s decision to initiate an investigation, as communicated to him in the letter of 8 July 2021.

The applicant does not dispute that he was made aware of the acts in question in July 2021. His argument is, in essence, that the acts in question only took effect when the Commission concluded its investigation and issued its final report in January 2022. The 12-month time limit contained in subsection (12)(a) is from the date on which the person affected by the act becomes aware of it and not from the date on which the person was affected by the act. I would add, in any event, that it seems to me that the applicant was, indeed, affected by the acts on the dates on which they occurred as the consequences of those acts took effect on those dates. I find that the application for a statement of reasons was not made within 12 months after the date on which applicant became aware of the acts for which reasons were sought

In relation to the question of whether the Commission should accept an application outside the 12-month time limit pursuant to subsection (12)(b), the Commission said the applicant had ample opportunity within the investigation process to raise any issues arising from the decisions of the Inquiry Officer and of the Commission, as encompassed by the four points for which the statement of reasons were sought, as evidenced by the submissions made on the applicant-�s behalf in the course of the investigation hearing. Accordingly, it said that it does not consider that the particular circumstances warrant the provision of statements of reasons outside the statutory 12-month time limit.

As I have outlined above, subsection 12(b) provides that the FOI body may accept a late applicationwhere the particular circumstances warrant it(my emphasis). The applicant-�s arguments are that no proper reasons were given for the acts identified and that reasons should be given in the interest of openness, transparency and fairness. Even if he is correct in his assertion that no proper reasons were given, and I make no finding on the matter, it is reasonable to assume, in my view, that this was his position from the time he became aware of the acts, in July 2021. As such, it was open to him to submit an application for a statement of reasons within 12 months of that date. He did not explain in his correspondence why he did not make an application within 12 months or whether there were particular circumstances that prevented him from doing so. Accordingly, I fail to see how the arguments he has presented can reasonably be regarded as particular circumstances warranting the acceptance of a late application. I find that that the applicant has not shown that the particular circumstances warrant the acceptance of an application outside the 12-month time limit.

In conclusion, therefore, I find that the Commission was justified, pursuant to section 10(12), in refusing 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 Commission-�s decision to refuse, pursuant to section 10(12) of the FOI Act, to provide a statement of reasons for findings made by the Commission-�s Inquiry Officer and decisions taken by the Commission in connection with its investigation.

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