Case number: 140011

Whether the applicant is entitled to a statement of reasons for all 16 aspects of the application she made to the Institute under section 18 of the FOI Act (her section 18 application), and whether the statements accordingly issued to her by the Institute are adequate for the purposes of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

On 4 November 2013, the applicant made a 16-part application to the Institute under section 18 of the FOI Act. I see no need to repeat the details of that application in full in this decision. It can be generally described as seeking statements of reasons for "acts" such as: why the Institute published a particular provisional result and a different final result for year two of the course undertaken by the applicant; why it provided her with an electronic application form to repeat a particular module for that year; why it sought and requested, but did not award or publish marks for, the applicant's academic journal for that module; why she was not given written notice of the change between provisional and official results; why her emails of a certain date were not replied to; why the Institute did not change her official result further to the external examination process; why the Institute did not, according to the applicant, comply with certain aspects of the "learning contract"; why the applicant was allegedly not informed of issues that arose in certain meetings with named individuals; and why she was not provided with all documentation considered by the examination board in relation to the relevant module until after the publication of her official results. She also sought reasons for the decisions made in the various stages of her ensuing official complaint to the Institute and reasons why (according to the applicant), certain aspects of those complaints were excluded.

On 4 December 2013, the Institute issued its decision on the applicant's section 18 application. It provided her with explanations regarding each aspect of her application and, where appropriate, referred her to various documentation (copies of which were enclosed with the decision) and other material in her possession.

In emails dated 8 and 11 December 2013, the applicant sought an internal review of the above. In its internal review decision of 8 January 2014, the Institute provided the applicant with further details in relation to the various aspects of her section 18 application. Where appropriate, the Institute also referred her to the contents of 10 documents it had appended to that internal review decision.

On 13 January 2014, the applicant sought a review by this Office of the Institute's decision, saying that the Institute had "provided policy as a statement of reasons for decisions on internal appeal".

By way of letter to the applicant dated 8 December 2014, Ms Anne Lyons, Investigator, explained why she considered her to have an entitlement to statements of reasons in respect of only some aspects of her section 18 application. In addition, she provided the applicant with the text of a further statement proposed to be issued by the Institute in relation to parts 1 and 4 of her section 18 application, and a copy of a more detailed explanation the Institute had prepared concerning part 16 of the section 18 application. While the applicant was invited to reply to this letter by 2 January 2015, no reply has been received. I have now decided to conclude this review by way of a binding decision.

In carrying out my review, I have had regard to the various statements of reasons issued by the Institute to the applicant; to the various correspondence set out above and to correspondence between this Office and the Institute; and to the provisions of the FOI Act. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of this review is confined to the issues of whether the applicant is entitled to a statement of reasons for all 16 aspects of her section 18 application to the Institute, and whether the statements issued by the Institute in relation to those valid aspects of the application are adequate for the purposes of section 18 of the FOI Act.

Findings

Extent to Which Section 18 applies
It is relevant to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how public bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by public bodies. Neither does this Office's remit extend to examining the appropriateness or otherwise of the particular act(s) for which statements of reasons are sought.

As has been found by this Office in previous decisions (such as those in Case Number 031099 (Mr X and the Department of Agriculture and Food) and Case Number 99212 (Mr X and Department of Agriculture, Food & Rural Development) both of which, and other similar decisions, are available on www.oic.ie), 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.

In case 99212 referred to above, the applicant argued that the failure of certain public officials to provide him with certain documentation might have resulted in his incurring a penalty under the Sheep Headage Scheme and he sought a statement of reasons as to why the two officials acted as they did. The former Commissioner found that any reasons for the alleged failure of the two officials to supply the applicant with certain information did not affect the outcome of his application for headage payments. He stated:-

"If a proper statement of reasons (i.e. one that meets the requirements of section 18) is given then the client will be able to see that the adverse effect resulted from the failure of officials to advise correctly. In my view, however, section 18 would not require the public body to give reasons why the officials failed to give full or correct advice e.g. lack of knowledge, lack of experience, lack of training, genuine misunderstanding etc. Analysis of why or whether maladministration may have occurred lies in the province of the Ombudsman, not the Information Commissioner."

In this case, it seems to me that the applicant is entitled to a statement of reasons which explains why the Institute found that her result for year 2 of the course she undertook was "withheld". This is the substantive decision for which I consider the applicant to be entitled to a statement of reasons (part 4 of the section 18 application refers). I also consider that she is entitled to a statement of reasons as to why the Institute acted as it did in publishing an incorrect, provisional, result of "withdrawn" (part 1 of the application refers), for the reasons that the Institute decided not to change her result further to the external examination process (part 7 of the application refers) and for the reasons for the Institute's decisions on the applicant's complaints investigated in what appear to be the separate stages 2, 3, and 4 of the official complaint process (parts 14 and 16 of the application refer). For the avoidance of doubt, I should say here that while the applicant is entitled to a statement of reasons explaining that it was on the basis of certain findings that the Institute acted as it did in exercising or refusing to exercise powers or functions which may result in the conferring or withholding of a benefit, section 18 does not entitle her to a statement of reasons as to why the Institute arrived at those findings.

Adequacy of Statements Provided

As for the adequacy of the statements provided by the Institute in relation to these aspects of the application, it should be noted that previous decisions of this Office have found that a statement 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.

I see no reason to repeat here the details contained in the various statements provided to the applicant in relation to parts 1, 4, 7, 14 and 16 of her section 18 application. Regarding parts 1 and 4, it seems to me that the Institute has explained that it incorrectly published a provisional result of "withdrawn"; that it identified this error and rectified it so that the published official result was "withheld"; and why that result was appropriate having regard to the applicant's particular circumstances.

I am also satisfied that the statement provided regarding part 7 adequately explains why the Institute did not change the applicant's final result further to the external review process. In the context of providing an explanation as to why the result was not changed, the Institute referred to the recommendations in the external review reports which were the basis for the examination board's decision that the findings did not warrant a change of the applicant's result.

As for the statements covering part 14 and part 16, I note that the Institute has referred the applicant to detailed findings of reports on the various stages of the complaint processes that she initiated. It seems to me that the level of detail supplied in the reports, and in a further statement provided to her in the course of the review, contain adequate reasons for the acts set out in parts 14 and 16 of her application.

Having regard to the above, I am satisfied that the Institute has provided adequate reasons for the substantive acts identified above. I find that the Institute has met its obligations under section 18 of the FOI Act in this case.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the adequacy of the various statements of reasons referred to above, as issued by the Institute to the applicant in respect of parts 1, 4, 7, 14 and 16 of her section 18 application of 4 November 2013, for the purposes of section 18 of the FOI Act.

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 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.

Elizabeth Dolan
Senior Investigator