Decision
Mr. Y and The Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-150849-P0T6K1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150849-P0T6K1
Published on
Whether the applicant is entitled to a statement of reasons and if so, whether the statement of reasons given by the Department was adequate
15 April 2025
This case has its background in the Department’s refusal of the applicant’s request for naturalisation under the Irish Nationality and Citizenship Act 1956. In a request dated 20 January 2024, the applicant submitted a request for information which also stated that under section 10 of the FOI Act 2014, he was seeking a statement of reasons on certain elements of the Department’s refusal of his request.
The applicant set out 6 different categories of information which he was seeking, two of which sought statements of reasons and the remaining four sought records/information in relation to the Department’s adjudication process on citizenship applications. The applicant sought:
“(a) In relation to appraising the “strength of connections to the state” any tests or variables based on either policy, jurisprudence and/or the decision makers’ judgement, that were used in evaluating such connections, over and above those cited in section 16(2)(a) of the Irish Nationality and Citizenship Act (1956, as amended).
(b) Any data/information, including from previous applications refused/granted, that was used in the calibration process of concluding that “the strength of these connections are weak.”
(c) A full statement of reasons for concluding that “the strength of these connections are weak.”
(d) In relation to appraising "...exceptional or compelling circumstances that raises the application above the norm" any tests or variables, based on either policy, jurisprudence and/or the decision makers' judgement, that were used in evaluating this.
(e) Any data/information, including from previous applications refused/granted, that was used in the calibration process of concluding that: "There is no evidence submitted with this application of exceptional or compelling circumstances that raises the application above the norm.”
(f) A full statement list of reasons for concluding that: “There is no evidence submitted with this application of exceptional or compelling circumstances that raises the application above the norm”
In a decision dated 16 April 2024, the Department refused access to parts (a), (c), (d) and (f) of the request under section 15(1)(i). The decision stated that the basic test with regard to Irish Association is establishing the blood link and the Minister has absolute discretion in accordance with the citizenship legislation. The information in parts (b) and (e) were refused in accordance with section 37(1), although the Department did not identify or schedule any records, it maintained that given the relatively low numbers involved, any information provided may
inadvertently lead to the identity of the individual applicants. On 20 April 2024, the applicant submitted his request for internal review. The applicant argued that under section 10 he was entitled to a statement of reasons, and further that the information he was seeking is beyond what was written in the reference document and was used in the deliberative process in terms of the Minister arriving at his decision. The applicant also stated that in terms of the information sought under sections (b) and (e) he would be happy to receive this information in summary or anonymised form.
On 20 May 2024, the Department issued its internal review decision, which affirmed the original decision. On 23 July 2024, the applicant applied to this Office for a review of the Department’s decision.
Upon receipt of the applicant’s application to this Office, the request was split into two parts. Parts (c) and (f) sought a statement of reasons from the Department on two parts of its refusal to grant the applicant’s citizenship application. Parts (a), (b), (d) and (e) of the request have already been dealt with by way of a decision issued by this Office in March.
During the course of the review, the Department decided to provide a statement of reasons to the applicant after erroneously refusing the request for a statement of reasons under section 15(1)(i). The applicant deemed the statement to be inadequate, and as such what I will be considering as part of this review is:
(i) whether the applicant is entitled to a statement of reasons under section 10 and if so,
(ii) whether the statement of reasons provided by the Department is adequate.
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. For example, the applicant bears the burden of showing that they have 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 required is that of “the balance of probabilities”. An applicant seeking a statement of reasons for an act of an FOI body under section 10 must show to the Commissioner that, on the balance of probabilities, he or she has a material interest in a matter affected by the act or to which it relates.
Section 10(1) 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 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 (2) provides that nothing in section 10 shall be construed as requiring the giving to a person of information contained in a record which would fall to be refused as an exempt record.
As the applicant is aware, 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.
The act for which a statement of reasons is sought 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 in a matter affected by the act for the purposes of the FOI Act. Generally speaking, therefore, the provisions of section 10(5) exclude acts which have general applicability.
Section 10(13) of the Act defines an “act” as including a decision (other than a decision under the FOI Act) of the body. The term "benefit", in relation to a person, is defined to include:
(a) any advantage to the person,
(b) in respect of an act of a public 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 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.
Following a request for focused submissions, which requested that the Department address its failure to consider section 10 in relation to parts (c) and (f) of the applicant’s request, the Department issued a statement of reasons to the applicant and this Office on 11 February 2025. The applicant in response, disputed the adequacy of this statement, arguing that the Department failed to address the specific information sought. He said that in his view, the Department just provided a summary of its policy and their interpretation of the legislative environment, but that it did not address the Section 10 information requested.
The Department said that although the original and internal review decisions did not consider section 10, the decision made took into account the applicant’s entitlement to receive records relating to the matter in question. In relation to the two elements of the appeal for which the applicant sought a statement of reasons, namely:
“(c) a full statement of reasons for concluding that “the strength of these connections are weak”
(f) a full statement of reasons for concluding that “there is no evidence submitted with this application of exceptional or compelling circumstances that raises the application above the norm”
It said that the decision maker, when considering these elements was of the view that the applicant already had this information through various channels over the years, including FOI, through numerous requests and direct correspondence and as a result refused the information in accordance with section 15(1)(i). It said that nevertheless following consultation with this Office, a statement of reasons was provided to the applicant. It said that the Department acknowledges that the original request was not processed properly, however it was of the view now, that the applicant had been provided with all appropriate information. It added that the Department was in the process of drafting guidelines currently, which are being finalised and that these will provided further clarification and transparency around the decision making process relating to these types of citizenship applications.
The applicant has argued that the original decision letter did not adequately explain the rationale for the decision to refuse the application, notably the underlying basis that the applicant’s connections to the state were deemed “weak”. The applicant has argued that this is manifestly untrue in terms of section 16(2)(a) of the Irish Nationality and Citizenship Act 1956, which provides “For the purposes of this section a person is of Irish Associations if (a) he or she is related by blood, affinity or adoption to, or is the civil partner of, a person who is an Irish Citizen or is entitled to be an Irish Citizen”. The applicant has argued that at the point of deciding the application he was married to an Irish Citizen for over 12 years and shared three Irish Citizen children, and that this was in addition to three years’ residency in the State, all of which he says were accepted by the Minister. He has argued that this begs the question why these Irish Associations/Connections were characterised as weak with the FOI response referring back to the Original decision which he has argued lacks this key information.
He has argued that moreover, the decision makers are refusing to specify what tests and factors were used in arriving at this conclusion, again presenting a profound deficiency of reasons. He has said that the decisive statement in the original decision letter (“There is no evidence submitted with this application of exceptional or compelling circumstances, that raises the application above the norm”) is completely unsubstantiated. The applicant has argued that the recommendation of
his decision letter avoids the key issues and does not elucidate the specific points he has sought clarity on. The applicant drew this Office’s attention to what he argues is seminal jurisprudence in this area -Borta v.s. Minister for Justice (2019) - Court of Appeal of Ireland in which the Judge determined that where an association was sufficient to enable the Minister to exercise discretion to grant a certificate of naturalisation, it was incumbent on the Minister to explain why the strength of the Irish Association was insufficient.
The applicant argued that reasons for his refusal relate to the secondary issue of connections to the State but there is no explanation as to why his Irish Associations, as defined by the Act, are insufficient to warrant the Minister to use her favourable discretion (to use the words from Borta)where that association was sufficient to enable the Minister to exercise discretion to grant a certificate of naturalisation . The applicant has argued that this makes it clear that this must be provided to the applicant.
Finally, the applicant argues that the Minister has placed great reliance on no exceptional/compelling circumstances being present in the application, yet this fails to engage with the extenuating circumstances detailed in his letter of application and extensive supporting documentation i.e. the inhibiting impact of his disability on finding employment in Ireland and the very limited employment prospects in his field of speciality. He has argued that both of which appear to be deemed to be insufficient to meet the Minister's threshold through not being explicitly reckoned in the deliberative decision making process. He maintains that there are no reasons provided as to why this is the case.
For reference, section 15 of the Irish Nationality and Citizenship Act 1956 provides for Ministerial discretion in granting an application of a certificate for naturalisation, if satisfied that the applicant complies with certain conditions, such as continuous residence in the state for a year before the date of the application, and during the eight years proceeding has a total residence in the state for four years. Section 16 of the of the Irish Nationality and Citizenship Act 1956 provides that the Minister may grant an application for a certificate of naturalisation in certain specific circumstances, although the conditions of naturalisation are not complied with, again at his/her own discretion. In the applicant’s case he had applied under section 16 of the Act to have the conditions under section 15 waived on the basis of what he believed to be exceptional circumstances. The Minister issued a decision on his section 16 application refusing to waive the section 15 requirements, on the basis that that it was considered that there were no exceptional circumstances which would set the application above the norm.
In his original request to the Department, the applicant specifically sought two statements of reasons related to certain factors used in the overall deliberation and determination on his application for naturalisation. Specifically, the applicant sought a statement of reasons on why the Department had determined that the “strength of his connections” to the Irish State were weak, and a statement of reasons on why the Department had determined that there was “no evidence
of exceptional or compelling circumstances” which would raise his application above the norm, in the overall decision made to refuse his application for naturalisation.
I consider it appropriate first of all to address the issue of whether the actions in respect of which the applicant has sought statements of reasons are “acts” for the purposes of section 10 of the FOI Act. If the actions are not an “act” to which section 10 applies, the remainder of the issues are essentially rendered moot.
As noted above, the requirement to provide a statement of reasons does not apply to every action of an FOI body, and in order for a right to a statement of reasons to arise under section 10, this Office 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. I do not consider that section 10 requires the Department, upon request, to provide a statement of reasons for every action taken in the course of deciding such applications that might inform their approval or refusal.
I have considered the overall decision of the Department to refuse the applicant’s request for naturalisation as the “act” which resulted in the conferring or withholding of the benefit in question, in this case the applicant’s naturalisation as an Irish Citizen. The issues which the applicant has requested a statement of reasons on, are in my view factors which went into the decision making process, which resulted in the withholding of the benefit.
It should be noted again that that after failing to process the request properly at original and internal review stage, the Department issued the applicant with a statement of reasons further outlining the decision making process for section 16 requests, which means that the Department essentially accepted that the applicant had sought a statement of reasons for an act within the meaning of section 10 of the FOI Act. However, having reviewed the applicant’s request I am forced to disagree, I am not satisfied that the actions complained of constitute an “act” of the Department for the purposes of section 10. That is to say, the impugned actions seem to me rather to be steps in the overall decision making process leading to its execution of a relevant function or power (the approval of a request for naturalisation) rather than that function or power itself.
It is worth noting that there will be many instances where a number of secondary actions/decisions 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. While the applicant may be entitled to a statement of reasons for the substantive decision, the Commissioner considers 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 which was taken in arriving at that decision.
It is clear that the applicant disputes the Department’s decision and how it has processed his request for naturalisation under section 16. As the applicant is aware, this Office has no remit to
investigate such 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. Neither should section 10 be considered an alternative appeal mechanism for decisions taken by FOI bodies. Section 10 is concerned only 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.
In making this finding, I do not wish to minimise the obligations on the Department to provide accurate advice and information to applicants about the schemes it administers. However, any failure by the Department in this matter cannot be remedied by section 10 of the FOI Act. That section is concerned with the giving of reasons for acts of a public body, (meaning its exercise of, or refusal to exercise, a power or function), rather than requiring a public body to justify its actions.
This Office 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. Having carefully considered the matter, I am satisfied that there is no obligation on the Department to provide a statement of reasons to the applicant in the circumstances, and accordingly that there is no need for me to consider the adequacy of the statement provided any further.
In summary, on the basis of the above analysis, I find that the acts/decisions of the Department in respect of which the applicant requested a statement of reasons are not acts in respect of which the applicant was entitled to such a statement under section 10 of the FOI Act, and I annul the decision of the Department to issue him with such a statement.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision on the applicant’s FOI request, on the basis that the acts/decisions in respect of which the applicant sought a statement of reasons do not constitute acts for the purposes of section 10, such that the applicant is not entitled to the statement sought.
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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Rachael Lord
Investigator