Case number: 130198
On 22 February 2013 the applicant submitted an FOI request to the University seeking (1) access to her personal records, under section 7 of the FOI Act, for the period from August 2010 to January 2013, (2) amendment, under section 17 of the FOI Act, of seven records as viewed via the student's portal of the University's website and (3) a statement of reasons for 62 "acts" of the University under section 18 of the FOI Act. As the applicant did not receive a response she requested an internal review of the decision on the basis of a deemed refusal. The University issued its internal review decision on 16 May 2013 and part granted the request for access to records, agreed to one amendment under section 17 and provided statements of reasons for some of the acts under section 18.
The applicant wrote to this Office on 29 July 2013 seeking a review of the University's decision.
For procedural reasons, this Office decided to divide the application into three reviews numbered 130196 - section 7, 130197 - section 17 and 130198 - section 18. All three reviews were conducted separately and this decision is confined to the application under section 18 of the FOI Act for a statement of reasons for 62 "acts" of the University. I have now decided to conclude this review by way of a formal binding decision.
In carrying out my review, I have had regard to correspondence between the University and the applicant, to contact between this Office and the University and to the relevant contacts between this Office and the applicant. I have also had regard to the relevant provisions of the FOI Act.
It is clear that the applicant in this case is not satisfied with the treatment afforded to her by the University while she was studying for a degree. She undertook a Masters degree by coursework and dissertation in the academic year 2010/11. Apparently, she did not achieve the required minimum standard to progress and eventually resubmitted her dissertation on 11 July 2012. The applicant reached the required standard in the revised dissertation on 24 July 2012 and proceeded to graduate in January 2013. I wish to emphasise at the outset that it is outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally. This means that this Office does not have the authority to investigate complaints against public bodies or to act as an alternative dispute resolution mechanism with respect to actions taken by public bodies.
The applicant in this case submitted a request for a statement of reasons for 62 individual decisions or acts of which she says the University carried out while she was studying for her degree. The University, in dealing with this element of the request, addressed each one of the 62 decisions by providing statements of reasons for certain acts and refused to give reasons for certain other acts as, in its view, the applicant was not entitled to a statement of reasons under section 18 of the FOI Act.
My review is concerned solely with the question of whether the statements of reasons, provided to the applicant by the University, are adequate for the purposes of section 18 of the FOI Act.
Section 18 of the FOI Act provides that a person who is affected by an act of a public 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. 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." Where a requester applies for a review of a decision of a public body on the ground that s/he is not satisfied with the contents of the statement given, the Commissioner's role is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. whether the statement given is adequate.
The applicant submitted a request for a statement of reasons under section 18 of the FOI Act for 62 individual decisions or acts carried out by the University. At the outset, I do not accept that the applicant is entitled to a statement of reasons in respect of each and every one of the actions in her request. Former Commissioners have observed in previous decisions which are available on our website at www.oic.ie (e.g. Mr X and the Department of Agriculture and Food - Case Number 031099 (2005); Mr X and Department of Agriculture, Food & Rural Development- Case Number 99212 (2001)), that there are many acts/decisions taken by public bodies where section 18 has no relevance. This Office takes the view that 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, the Commissioner considers 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. I do not accept that section 18 requires a public body to provide a statement of reasons for not taking alternative courses of action in respect of a particular act, nor has this Office a role in examining the administrative processes of public bodies.
Having carefully examined all 62 requests, in my view the substantive acts for which the applicant is entitled to a statement of reasons are (1) why the applicant was delayed progression to graduation, (2) why an NG grade was incorrectly inputted on the student portal of the University's website and (3) why the course tutor was involved in the appeal of the marks awarded to her.
At this stage, it would be useful to set out what the Commissioner considers should be the principal features of a statement of reasons having regard to section 18. In the Commissioner's view, 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 the applicant to understand without undue difficulty why the public 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, a statement must not necessarily contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision. The Commissioner considers that the purpose of section 18 of the FOI Act is to ensure that such reasons for an act as may be identified are conveyed to the applicant; where reasons cannot be identified, it is not the purpose of section 18 to require the creation, after the event, of such reasons. Furthermore, the Commissioner's remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought.
The applicant, in her application, requested statements of reasons for "acts" by named tutors in the University. However, where section 18 applies, it is the act of the public body, rather than particular individuals involved in the act, which is relevant. As the former Commissioner explained in Mr X and University College Dublin, Case Number 031015 (2003), also available at www.oic.ie: "[T]he requirement on the public body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or had been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process. What section 18 requires is that the head provide a statement of reasons which adequately explains why the body acted as it did."
In its statements of reasons, I consider that the University provided clear information in response to many of the detailed requests and also referred the applicant to other sources of information including the University's Handbook of Academic Regulations & Procedures and previous emails sent to the applicant where it had provided clarification at a previous date. The University also had a meeting with the applicant in July 2012 to explain why an incorrect grade was inserted in the student portal of the University's website. It said that this was due to the constraints of the computer system. Taking account of the above and to the nature and extent of the statements provided to the applicant, I am satisfied that adequate reasons for the substantive acts identified above have been provided to the applicant in this case. Accordingly, I find that the University's statements of reasons, taken together with emails and meetings with the applicant are adequate to meet its obligations under section 18 of the FOI Act and I find accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the University in this case on the basis that its statement of reasons, emails and meetings with the applicant satisfies the requirements 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 after notice of the decision was given to the person bringing the appeal.
12 September 2014