Decision
Mr H and the Department of Transport, Tourism and Sport ("the Department")
From Office of the Information Commissioner (OIC)
Case number: 140037
Published on
From Office of the Information Commissioner (OIC)
Case number: 140037
Published on
Whether the Department was justified, pursuant to Section 18 of the FOI Act, in its decision to refuse to provide a statement of reasons for the decisions to give the answers contained in a letter to the applicant dated 6 November 2013 which issued in response to the applicant's letter of 17 October 2013
2 July 2014
In a request dated 25 November 2013 the applicant wrote to the Minister for Transport, Tourism and Sport citing section 18 of the FOI Act and seeking that he make a statement relating to the decisions to give the answers that he did in a letter the applicant received on 7 November 2013. The letter in question comprised the Minister's response to the applicant's letter of 17 October 2013 relating to a reply the applicant received from Stephen Donnelly, TD regarding Parliamentary Questions on the School Transport scheme. The Minister responded directly to the section 18 request on 28 November 2013, stating that section 18 did not apply as the acts identified were not acts of the Department within the meaning of section 18. The response did not contain details of the applicant's rights of appeal.
On 4 December 2013, the applicant sought an internal review of the decision to refuse his request for a statement of reasons. In his reply of 9 January, the Minister correctly explained that it was not open to the Department to review the original decision as he had taken the decision as head of the Department. He informed the applicant of his right to apply to this Office for a review of the original decision. The applicant applied to the Commissioner for a review of the Department's decision on 16 January 2014.
On 26 May 2014, Ms Sandra Murdiff, Investigating Officer, informed the applicant of her preliminary view that the Department's decision to refuse to provide a statement of reasons for the matters at issue was justified. She invited him to make further comments if he disagreed with her preliminary views. In his email dated 6 June 2014, the applicant, who has a number of review applications before this Office, made some comments which he deemed relevant to each review but he did not specifically comment upon Ms Murdiff's preliminary views. At his request, the applicant was given further time to make comments in relation to this review but he did not do so. Accordingly I have decided to conclude this review by issuing a formal decision. In conducting this review I have had regard to the provisions of the FOI Act, to the submissions of the Department and to those of the applicant.
The scope of this review is concerned solely with the question of whether the Department was justified in refusing the applicant's request for a statement of reasons for the decisions to give the answers contained in a letter to the applicant dated 6 November 2013 which issued in response to the applicant's letter of 17 October 2013.
Section 18 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 the act and has a material interest in a matter affected by the act or to which it relates. Section 18(5) provides that a person has a material interest in a matter affected by an act of public body or to which it relates:
"[I]f 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."
Clearly, there will be many acts/decisions taken by public bodies where section 18 has no relevance. As the then Commissioner stated in Case No. 99212 (Mr X and the Department of Agriculture, Food and Rural Development):
"[S]ection 18 does not apply to every action of a public body. The Oireachtas could not have intended that public 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 public body and its officials. Taking section 18 as a whole, it seems to me that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of 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. In other words, if the same outcome would result regardless of the reasons for the act in question then section 18 does not apply to that act."
It will follow that a key consideration as to whether a person is entitled to a statement of reasons for an act of a public body is whether the act has the consequence or effect of conferring on, or withholding a benefit from the person. In Case No. 090131 (Ms. C & Department of Health and Children), the then Commissioner stated as follows:
"I consider 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 the public body; i.e. the Applicant bears the burden of showing that he or she has a material interest in the matter".
This decision and the decision in Case No. 99192 referenced above can be viewed in full on our website www.oic.ie.
In essence, it appears that the applicant's primary concerns relate to the operation of the School Transport Scheme. He clearly has concerns as to the accuracy, or otherwise, of information provided in response to Parliamentary Questions relating to the Scheme. It may well be the case that the applicant has been affected by certain decisions relating to the operation of the Scheme. However, what the applicant has sought in this case is a statement as to why the Minister provided the answers he did in the letter at issue. In that letter, the Minister explains that his Department has no role in relation to the School Transport Scheme, that Parliamentary Questions from Stephen Donnelly, TD, were answered correctly by the Minister for state at the Department of Education and Skills, that he refutes any suggestion that he has either misled or withheld information from the Dáil, and that he fully concurs with replies which were furnished to the applicant by the Secretary General of the Department in October 2013.
In so far as it might be deemed to be an act for the purposes of section 18, the decision of the Minister to respond as he did in the letter at issue could not, in my view, have the consequence or effect of conferring on or withholding a benefit from the applicant, nor has the applicant explained how this might arise. Accordingly, it is my opinion that the applicant does not qualify as a person with a material interest for the purposes of section 18 of the FOI Act. It is also important to appreciate that the remit of the Commissioner does not extend to the appropriateness or otherwise of the particular actions of a public body and that for the purposes of the FOI Act, the taking of an interest, no matter how extensive, by a person, does not of itself confer that "material interest" which is required under section 18(5). I therefore find that the decision of the Department to refuse the request under section 18 of the FOI Act was justified, and I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department in this case.
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