Case number: 140020

Whether the Department was justified, pursuant to Section 18 of the FOI Act, in its decision to refuse to provide a statement of reasons to the applicant in relation to the acts or decisions of notifying or not notifying the EU Commission under State aid rules when the Department acquired the services of Bus Éireann to transport children with special needs to school or day care centres (a) to replace services previously acquired or provided by the Department of Health and (b) by taxi.

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

Background

In a request dated 22 November 2013 the applicant sought a statement of reasons under section 18 of the FOI Act in relation to the following:

  1. "The act or decision of not notifying the EU Commission under State aid rules current at the time when you acquired the services of Bus Éireann to take over the services that the Dept of Health had previously acquired or provided for transporting children with special needs to school or day care centres. In the alternative if the EU Commission was notified please give a similar statement."
  2. "The act or decision of not notifying the EU Commission under State aid rules current at the time when you acquired the services of Bus Eireann.... [to transport] children with special needs by taxi. In the alternative if the EU Commission was notified please give a similar statement."

The Department refused to provide a statement of reasons in its decision on 19 December 2013 on the grounds that the applicant had not identified a specific act of the Department nor demonstrated a material interest in the matter, as defined by the FOI Act. On 15 January 2014, following an internal review, the Department upheld its original decision on the same grounds. On 16 January 2014 the applicant applied to the Commissioner for a review of the Department's decision.

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 acts 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 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.

Scope of the Review

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 decision to notify or not notify the EU Commission under State aid rules when the Department acquired the services of Bus Éireann to transport children with special needs to school or day care centres (a) to replace services previously acquired or provided by the Department of Health and (b) by taxi.

Analysis and 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 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."

Section 18(6) defines a "benefit" in relation to a person as including:

"(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."

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 and whether that benefit is also conferred on or withheld from persons in general or a class of persons as set out in section 18(5) of the Act. 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".

In essence, it appears that the applicant's primary concerns relate to the operation of the School Transport Scheme. He contends that he is affected by the acquisition of services relating to the Scheme and that he has a material interest in the matter affected by the acts in question. 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 Department notified or did not notify the EU Commission under State aid rules when it acquired the services of Bus Éireann to transport children with special needs to school or day care centres (a) to replace services previously acquired or provided by the Department of Health and (b) by taxi.

In that regard, the question arises as to what is the "act" for which the statement of reasons is sought. In Case Number 99212, (Mr X and the Department of Agriculture, Food and Rural Development)the then Information Commissioner set out that it seemed to him that the word "act" in Section 18 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 so far as it might be deemed to be an act for the purposes of section 18, the decision of the Department to notify or not notify the EU Commission 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.

The decisions in 090131 and 99212 can be viewed in full on our website www.oic.ie.

Furthermore, in my view the terms of section 18(5) excludes acts which have general applicability. Rather, the act must affect a person particularly, albeit not necessarily exclusively. Where the act does not relate individually to the person concerned, 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.
A decision of the Department to notify (or not notify) the EU Commission under State aid rules in relation to the acquisition of Bus Éireann's services would, in my opinion, have a general applicability. Matters of State aid, in my view, affect the general public in terms of the use of State funds. Decisions made by the Department in relation to the notification or non-notification to the EU Commission about the Scheme would, in my opinion, be likely to equally affect all persons involved, or likely to be involved, in the school transport of children with special needs. Therefore, in my view, notification or non-notification to the EU Commission would not have the consequence or effect of conferring on or withholding a benefit from the applicant that was not also conferred on or withheld from persons in general or a class of persons comprised of all persons involved or potentially involved in school transport for children with special needs.

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.

Decision

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.

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.

Sean Garvey
Senior Investigator