Decision
Mr B and the Department of Transport, Tourism and Sport (the Department)
From Office of the Information Commissioner (OIC)
Case number: 090078
Published on
From Office of the Information Commissioner (OIC)
Case number: 090078
Published on
Whether a statement of reasons, issued by the Department to the applicant on 17 December 2013, is adequate for the purposes of section 18 of the FOI Act
13 February 2014
On 6 August 2008, the applicant made an application to the Department under section 18 of the FOI Act. He said that he was making the application on behalf of a company that had been impacted on by certain acts of the Department, and on his own behalf as a majority shareholder of that company (to which I will refer in the remainder of this decision as "the Company"). He also made his application as a user of public transport.
The applicant sought a statement of reasons for "any decision in relation to bus routes proposed to be operated via the Port Tunnel from January 2005 onwards which do not pass through or terminate at Dublin Airport and which provide services to the vicinity of Swords ... specifically including, but not limited to":
(i) The decision not to permit Dublin Bus to alter the route of the 41x bus route on a first occasion on a date unknown between March 2005 and 5 June 2008;
(ii) The decision not to permit Dublin Bus to alter the route of the 41x bus route on a second occasion on a date unknown between March 2005 and 5 June 2008;
(iii) The decision to permit Dublin Bus to alter the route of the 41x bus route without reference to the Minister for Transport and without ministerial consent in reference to a notification made by Dublin Bus on 5 June 2008;
(iv) The decision to process the application of Dublin Bus to operate an express service via the Dublin Port Tunnel in advance of processing any earlier application received from any private operator; and
(v) The decision in late February 2008 not to pass on the results of a survey [to a variety of parties including the applicant] that the applicant contended showed "predatory, illegal behaviour" on the part of Dublin Bus that would undermine the Company's business.
The Department did not issue a decision within the statutory timeframe set out in the Act, effectively refusing the section 18 application. On 13 October 2008, the Department told the applicant that the information sought in the statement was "subject to civil proceedings in a court" and was exempt under section 23(1)(a)(iv) of the FOI Act (a provision that may be applied to records that, if released, could reasonably be expected to prejudice or impair the fairness of such proceedings). Following the applicant's internal review application of 16 October 2008, the Department issued an internal review decision on 31 October 2008. It accepted that the Company, and the applicant as a majority shareholder thereof, was entitled to a statement of reasons in relation to some, but not all, aspects of the section 18 application, and provided him with a statement accordingly.
On 25 March 2009, the applicant sought a review by this Office of the Department's decision. In the early stages of this Office's review, the Department provided the applicant with a further statement of reasons. It is clear from the applicant's email to this Office of 18 August 2009 that he was not satisfied with either the content or the format of that further statement.
Regrettably, a long delay arose in making further progress with the review. The case was ultimately reassigned to Ms. Anne Lyons, Investigator, who, on 19 September 2013, emailed the applicant to confirm that he wished to proceed with the review. The applicant replied, by email on the same day, to say that he "wish[ed] to proceed ...".
On 1 October 2013, Ms Lyons told the Department she agreed with its refusal of certain aspects of the section 18 application, but that she did not consider the statements previously issued in relation to the remainder of the application to be adequate for the purposes of section 18 of the FOI Act.
Further to various subsequent contacts between Ms Lyons and the Department, the latter issued a more detailed statement of reasons to the applicant on 17 December 2013. By way of email to the applicant, also dated 17 December 2013, Ms Lyons outlined why she considered him not to be entitled to a statement of reasons in respect of certain aspects of his section 18 application. In particular, she said she considered that a valid application under section 18 of the FOI Act must identify the particular act(s) for which a statement of reasons is required in the first instance. Thus, she said that she saw no need to consider further that aspect of the application which sought a statement of reasons for "any decision in relation to bus routes proposed to be operated via the Port Tunnel from January 2005 onwards ..." (which seems to me to be, effectively, a unspecific "catch-all", rather than a particular act to which section 18 may apply).
Ms Lyons told the applicant that she considered the statement issued by the Department to him that day (i.e. 17 December 2013) to meet the requirements of section 18 of the FOI Act in respect of the remaining aspects of his application. She asked the applicant to submit any comments he wished to make by 14 January 2014.
The applicant replied, also by way of email dated 17 December 2013, that it was not appropriate to "blend" the separate requirements of sections 18(1)(a) and (b) of the FOI Act, which he maintained was the case with the "response [he had] received" from the Department. He said he "propose[d] to only move [his] appeal forward on this ground, and not to move forward on other points". Assuming that the applicant had received the Department's revised statement of reasons of 17 December 2013 by email, Ms Lyons told the applicant that the case would now proceed to a final decision, based on her preliminary views and on his subsequent comments.
However, the applicant emailed Ms Lyons on 18 December 2013, in which he said he had received a statement of reasons from the Department that day. He queried a comment in the Department's cover letter that "agreement [had] been reached" between it and this Office regarding the content of the statement concerned. He also said that the acts the subject of the statement "appear to have been effectively been quashed by a settlement entered [into] by the Department in 2008" further to a High Court judgment in a court case taken by the Company, and appeared to question why the most recent statement pertained to those "quashed" acts.
No further comments have been received from the applicant. As it is not apparent that the applicant is willing to withdraw his application for review, I have now decided to conclude the review by way of a binding decision.
In carrying out my review, I have had regard to the statement of reasons issued by the Department to the applicant on 17 December 2013; to the various correspondence set out above; and to the provisions of the FOI Act.
The scope of this review is confined to assessing whether the Department's most recent statement of reasons (i.e. that of 17 December 2013), which it issued in relation to parts (i) to (v) of the section 18 application, is adequate for the purposes of section 18 of the FOI Act. The review will not consider whether or not the applicant is entitled to a statement of reasons for all aspects of his section 18 application.
The Department issued statements to the applicant, under section 18 of the FOI Act, in October 2008 and May 2009. The applicant's letter to this Office of 18 August 2009 disputed the adequacy of the statements concerned in terms of their format and their content.
Because the applicant said, on 19 September 2013, that he "wish[ed] to proceed" with the review, this Office then engaged with the Department for the purposes of providing the applicant with a statement of reasons that, in the opinion of this Office's Investigator, met the requirements of section 18. As the applicant is aware, it is not the case that this equates to an "agreement" with the Department; it is open to me to reject any opinion or recommendation put to me by an Investigator.
My decision will comment briefly on the principle features of a statement of reasons under section 18. However, the fact that an act the subject of a section 18 application may have been overtaken by subsequent events is irrelevant to the question of whether a statement of reasons regarding that act is adequate for the purposes of section 18. Thus, and in light of the applicant's instruction of 19 September 2013 for the review to proceed, the Department had no choice but to provide him with further details regarding acts that the applicant himself described as having been "effectively ... quashed" some five years previously.
Section 18(1) of the FOI Act provides that a person is entitled to a statement of reasons for an act of a public body where that person is affected by that act and has a material interest in a matter affected by the act, or to which it relates. Section 18(1)(a) requires a statement to specify the reasons for the act for which the statement has been sought, whilst section 18(1)(b) requires it to set out any findings on any material issues of fact made for the purposes of the act concerned.
A statement of reasons issued under section 18 should be intelligible and adequate, having regard to the particular circumstances of the case. It should be sufficiently clear to enable the applicant to understand without due difficulty why the public body acted as it did. It does not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision.
It appears, from the applicant's emails of 17 and 18 December 2013, that the applicant took Ms Lyon's preliminary views letter as pertaining to the statements issued to him by the Department in October 2008 and May 2009, rather than that issued to him on 17 December 2013. In his email of 17 December, the applicant stated that he wished the review to focus on the format of the statements concerned, rather than their content.
In that email, the applicant argued that the FOI Act requires a statement to specify the reasons for the act for which the statement has been sought separate to any findings on any material issues of fact made for the purposes of the act concerned. He maintained that sections 18(1)(a) and (b) "lay down the format which a statement under section 18 are (sic) to take"; that it was "hardly intended that the requirements of (a) and (b) would be provided in a single 'blended' block"; and, thus, "[i]t was clearly intended that the two aspects be dealt with separately." He contended that it is "not at all unreasonable or onerous" for a statement to "reflect this division".
I do not accept that sections 18(1)(a) and (b) of the FOI Act prescribe the precise layout in which a statement should be issued. Rather, they prescribe the details that the statement must contain. A statement is not inadequate for the purposes of section 18 merely because reasons for the act, and findings on any material issues of fact, are set out in a combined narrative.
The applicant, albeit at a very late stage, withdrew that aspect of his appeal regarding the adequacy of the content of the statements provided to him prior to 17 December 2013. Thus, it would be open to me to conclude this review by finding that those statements were adequate for the purposes of section 18, notwithstanding the applicant's views on the requirements of sections 18(1)(a) and (b) of the FOI Act.
However, for the sake of completeness, I have decided to base my decision on the statement issued by the Department on 17 December 2013. I consider it to contain sufficient detail for the applicant, and indeed any reader, to understand why the particular acts referred to therein were carried out at the time. Notwithstanding any view the applicant may have to the effect that the statement does not contain a sufficiently clear "division" between reasons for the acts and findings on any material issues of fact, I consider the contents of this statement to be adequate for the purposes of section 18 of the FOI Act. I find accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the adequacy of the statement of reasons, issued by the Department to the applicant in respect of certain aspects of his section 18 application on 17 December 2013, for the purposes of section 18 of the FOI Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator