Case number: 090132

The Commissioner found that the Applicant did not have a material interest in the matter, as that term is defined in section 18(5) of the FOI Act, and therefore that the Applicant was not entitled to a statement of reasons under section 18 of the FOI Act. She affirmed the decision of the HSE accordingly.

Case Summary

Whether the applicant is entitled to a statement of reasons under section 18 of the FOI Act for the decision to close cancer services at Tallaght Hospital; if so, whether the statement of reasons provided is adequate.

Date of Decision: 07.12.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

In a letter to the HSE dated 28 January 2009, the Applicant sought a statement of reasons, "both evidential and policy", for the decision of the HSE to reject an earlier Government policy and to authorise the closure of breast clinic and other cancer services at Tallaght Hospital.  The Applicant referred to her clinical history as patient of Tallaght Hospital and noted that she lives the Hospital's immediate catchment area.  She sent a similar letter on the same date to the Department of Health and Children (the Department).

The HSE initially took the position that the Department was the appropriate body for dealing with the matter, since it was responsible for developing the policy concerned.  The Applicant did not accept the HSE's position and therefore applied for internal review.  In her internal review application dated 12 March 2009, she referred to public statements by the Minister for Health and Children which indicated that the HSE had a role in the decision to close cancer services at Tallaght Hospital.  In a further letter dated 30 April 2009, the Applicant also referred to a decision by the Department stating that "the act undertaken by the Department in this instance was to endorse a decision of the Health Service Executive to concentrate cancer services in eight designated centres".  However, the HSE's internal review decision had already issued on 29 April 2009.  In this decision, the HSE maintained that its role in the matter was merely to implement the Government's cancer control policy, as set out in the 2006 National Cancer Control Strategy.  The HSE noted that, as a result of the policy, it is required "to reorganise cancer services into a smaller number of locations offering a more comprehensive range of cancer services".

The Applicant applied to my Office for review in a letter dated 18 May 2009.  In a letter dated 2 June 2009, Ms. Elizabeth Dolan, Senior Investigator, advised the Applicant of her preliminary view that the Applicant did not have a material interest in the matter and therefore was not entitled to a statement of reasons under section 18 of the FOI Act.  Subsequently, on 9 June 2009, the internal review decision-maker, Mr. Tony O'Brien of the National Cancer Control Programme, contacted my Office and spoke with Ms. Phyllis Flynn, Higher Executive Officer, in order to enquire whether it would be appropriate for him to address most of the Applicant's questions while the case was under review.  Ms. Flynn explained to Mr. O'Brien that it is the practice of this Office to endeavour to reach a settlement between the parties to a review where possible and stated that the Office would therefore have no objection if he wished to provide a written statement to the Applicant.  Accordingly, in a statement dated 16 June 2009, Mr. O'Brien attempted to explain to the Applicant "the rationale for the non-inclusion of Tallaght in the outcome of the selection process for eight comprehensive cancer centres".  The statement was based on the published information available to the general public. 

In a submission dated 20 August 2009, the Applicant raised objections to both Ms. Dolan's preliminary view letter and Mr. O'Brien's statement dated 16 June 2009.  She indicated that she would be willing to conclude her request upon receipt of records relating to a cost benefit analysis.  However, the Applicant's original request did not include a request for records under section 7 of the FOI Act or payment of the requisite fee for such a request.  A request for such records could also result in claims for exemption, including claims based on the adequacy of the search for such records.  In the circumstances, I do not consider it appropriate to pursue a further effort at settlement on this basis.  Having now completed my review in accordance with section 34(2) of the FOI Act, I have decided to conclude the matter by way of a formal, binding decision.

Conducted by the Information Commissioner in accordance with section 34(2) of the FOI Act

Scope of the Review

I note that, while the Applicant has emphasised her own clinical history as a patient of the Tallaght Breast Clinic, she accepts that her request for a statement of reasons relates to the broader decision to close cancer services at Tallaght Hospital.  Therefore, the threshold issue in this review is whether the Applicant is entitled to a statement of reasons for the decision to close cancer services at Tallaght Hospital.  If the Applicant is entitled to a statement of reasons in this case, then I must also determine whether the statement provided to her by the HSE in the course of this review is adequate for the purposes of section 18 of the FOI Act.

Submissions

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Findings

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 a public 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."

A "benefit" in relation to a person includes:

"(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."

In this case, it is not disputed that the Applicant is affected by the decision to close cancer services at Tallaght Hospital.  She lives within the immediate catchment area of the Hospital, she attends its Breast Clinic and says that she has a serious clinical condition, and she is very satisfied with the services she receives.  Nevertheless, I agree with Ms. Dolan that the Applicant does not have a "material interest" in the matter, as that term is defined in section 18(5) of the FOI Act.

The Applicant is aware of previous decisions of this Office addressing the issue of "material interest" for the purposes of section 18(5).  The decisions, which are available on our website at www.oic.ie, include Ms ABC and the Office of the Local Appointments Commissioners, Case Number 98101 (1999); Ms X and An Bord Pleanála, Case Number 031014 (2004); and Mr X and the Department of Education and Science, Case Number 020281 (2003).  In Case Number 98101, the Applicant, Ms ABC was one of 64 candidates short-listed in a competition for Assistant Chief Nursing Officer.  She sought reasons for the Local Appointments Commissioners' decision to adopt a particular marking scheme used in the competition.  The former Commissioner found that the marking scheme would apply to a wide class of persons of which Ms. ABC was a member and, in the circumstances, she did not have a material interest as required by section 18(5) of the Act. 

In Case Number 020281, the Applicant, Mr X,  wished to know the reasons for the introduction of a nationality clause in a student support scheme.  However, as the Applicant was one of over 2,000 persons similarly affected by the nationality clause, the Commissioner found that he belonged to a group of persons of significant size and therefore did not have a material interest in the act concerned.

In Case Number 031014, the Applicant, Ms X,  sought a statement of reasons for the decision of An Bord Pleanála to grant planning permission for the development of apartments in her vicinity.  Other property owners in the vicinity, comprising an estimated class size of 32 in total, shared the Applicant's position.  The Commissioner considered that the Applicant was not suffering any consequence or effect of the Board's decision which was not shared by others in her same position.  In the circumstances, the Commissioner found that the Applicant belonged to a class of persons of significant size and, therefore, was not materially affected by the decision.

The Applicant in this case argues that the previous decisions of this Office addressing section 18(5) do not provide the rationale for determining when a class size is significant.  She also argues that the public bodies should be required to describe in specific terms the size of the class and why it is significant. 

In my view, the rationale underlying the previous decisions of this Office may be derived from the terms of section 18(5) itself, which excludes acts which have general applicability.  Rather, the act must affect a person particularly, albeit not necessarily exclusively.  Section 18(5) sets the requirements for establishing the standing necessary to entitle a person to a statement of reasons for an act of a public body.  Like section 17, which allows for the amendment of personal information, and requests under section 7 for access to records containing personal information only, no up-front fee applies to section 18 applications; I take this to be a recognition that section 18 is intended to apply with respect to acts which relate personally or particularly to the person concerned. 

An example of a typical act in which the person concerned would have a material interest is an administrative decision on an application for social welfare or other such benefits.  Where the act does not relate individually to the person concerned in such a manner, the decision maker must have regard to all of the relevant circumstances in determining whether the Applicant is affected in at least some particular manner as compared to others.  If others are similarly affected, this does not necessarily remove the act from the ambit of section 18.  However, the greater the number of persons similarly affected, the more general and remote the interests of the persons affected are likely to be.  Taking as an example the act in question in the case, the transfer of cancer services from one major hospital to another, I note that this is based on a policy decision which affects persons availing of cancer services in general.

To put it another way, the legal definition of "material" relates to the question of relevance or importance.  Thus, it is my understanding that a material interest in a legal matter is one that is likely to influence, or is reasonably capable of influencing, the outcome of the matter.  In the context of section 18, therefore, I take it that a material interest arises where the consequence or effect of the act on the person may be a relevant consideration in determining or undertaking the act.  Again, a typical scenario is an administrative decision on an application for benefits.  Also, where an act directly affects a very limited number of persons, it may be reasonable to conclude in the circumstances that the particular interests of those affected were of relevance.  In contrast, a policy decision is based on the interests of the general public or community; therefore, the individual circumstances of the persons affected are less likely to be of relevance, and it is also less likely that any such person would be considered to have a material interest in the matter.  Thus, I consider that the precise size of the class is less important than what the class size says about the interests of the persons affected.  In other words, the class size is not in and of itself determinative; rather, it is an indicator of the relevance of the interests of the persons affected.

I find support for this view in the historical context of section 18 of the FOI Act.  As described by Maeve McDonagh in her book, Freedom of Information Law (2d ed., 2006), at pp. 58-59: 

"Prior to the introduction of the FOI Act, Irish administrative law had not provided a clear statement of the circumstances in which reasons for administrative decisions must be given.  It had been suggested that, apart from those cases in which there is a statutory right to reasons for decisions, a right to reasons for administrative decisions was available only in cases where the person affected by a decision indicated a serious intention to challenge it by way of judicial review or, where possible, by appeal.  [Citing Hogan and Morgan, Administrative Law in Ireland (3rd ed., 1998), p. 572.] . . .  Section 18 of the FOI Act transforms this area of administrative law by establishing a general right to reasons for administrative decisions.  This right can be exercised by any person who is affected by an act of a public body, and who has a material interest in a matter affected by such an act or to which the act relates."

As the Applicant points out, Hogan and Morgan suggest on page 575 of their book, Administrative Law in Ireland, referenced above, in relation to the definition of an "act" for purposes of section 18 that "[i]t may be, therefore, that there is no restriction (as there is in the case of constitutional justice) so that reasons will have to be given for both negative and positive acts; as well as for policy and administrative decisions".  However, unlike McDonagh, Hogan and Morgan make no reference to the provisions of section 18(5).  McDonagh, in contrast, states at page 62:  "The requirement that the person be affected by the act imposes a condition as to the standing of the person seeking the statement of reasons.  Therefore, in contrast to the other rights conferred by the FOI Act, it will not be open to everyone to exercise the right to a statement of reasons."  After explaining the provisions of section 18(5), McDonagh states:  "It is necessary, therefore, to show that the act had a particular impact on the person concerned as compared with people who are similarly situated."

The distinction between policy and administrative decisions in relation to the right to a statement of reasons is also discussed by the Supreme Court of Queensland in Bell and Anor v. Beattie & Ors [2003] QSC 333, at para. 18-19: 

"[18] One of the reasons why legislation for judicial review of administrative decisions was conceived was to alleviate the position at common law where a person affected by a decision generally had no right to a formal statement of reasons in the absence of provision in the particular statute under which the decision was made for reasons to be given. Legislation that was brought into effect in various jurisdictions reflected what the respective legislatures regarded as its appropriate ambit.

[19] Generally speaking, governments have been left free to decide policy questions. When a policy decision is made to legislate in a particular way, no individual right has been given to compel a formal set of reasons for the decision to be given. The understanding no doubt is that on many issues there will be a wide divergence and even polarisation of views and that normal political forces in a democratic system should ensure that when such decisions are proposed or made, they will be scrutinised by those who have an interest in them and debated in the public arena, not the courts."

I have also had regard to the judicial interpretation of the synonymous term "substantial interest".  Under the Planning and Development Act 2000, an Applicant for leave to bring judicial review proceedings must show a "substantial interest" in the matter as a precondition to the grant of such leave.  In Harding v. Cork County Council [2008] IESC 27, Kearns J held that, in order to meet this requirement, an Applicant must establish that he has an interest in the matter which is peculiar or personal to him and also that the nature and level of his interest is significant or weighty.

As in judicial review proceedings, 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.  As noted by McDonagh at page 71, the High Court decision in Deely v. Information Commissioner [2001] I.R. 439 appears to support this view.  Therefore, I see no basis for imposing a requirement on public bodies to describe in every case the specific size of the class and why it is significant.

In this case, it is not disputed that the decision to close cancer services at Tallaght Hospital has been made in the context of the national policy on cancer control.  The policy was set by the Government and is being implemented by the HSE with the approval and authorisation of the Minister.  The policy allows for only eight cancer centres, and the two locations selected for the Dublin Mid-Leinster region are St. James' Hospital and St. Vincent's University Hospital.  The decision not to select Tallaght Hospital affects any person in the Dublin Mid-Leinster region availing of cancer services whose personal preference is to attend at Tallaght whether because of its closer proximity, the quality of care, or some other such reason.  Such preferences may be of great importance to the individuals concerned; however, as such preferences are held by individuals availing of cancer services throughout the country, I do not accept that they establish a material interest in the matter for the purposes of section 18 of the FOI Act.  Even viewing the matter more narrowly, the "benefit" in question is the advantage of having a breast clinic within the immediate vicinity of a patient's home.  As this a benefit which is withheld from many patients of breast clinics in Ireland, regardless of the seriousness of their medical condition, I do not consider it sufficient to give the Applicant in this case a material interest in the matter.  In the circumstances, I find that the Applicant is not entitled under the FOI Act to a statement of reasons for the decision to close cancer services at Tallaght Hospital.  It is therefore unnecessary for me to address the question of whether the statement provided to the Applicant by the HSE in the course of this review is adequate for the purposes of section 18 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.

Right of Appeal

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 a review must be initiated not later than eight weeks from the date of this letter.

Emily O'Reilly

Information Commissioner

07 December 2009