Case number: 140279
On 13 April 2014 the applicant sent an email to the Minister for Finance (the Minister) relating to comments the Minister had made regarding the housing market. On 11 June 2014 the Minister's Private Secretary replied to the applicant by email enclosing a response to the issues he had raised. On 13 June 2014 the applicant replied to that email, requesting clarification as to whether it was a reply to a question of his and if so, requesting a copy of the enquiry it was addressing. No response was forthcoming and the applicant submitted an FOI request to the Department on 21 August 2014, seeking a statement of reasons as to why a decision was taken to ignore his email dated 13 June 2014.
Following an exchange of emails, the Department eventually informed the applicant, by email dated 29 August 2014, that it could not proceed with the request. While it would have been more appropriate for the Department to have processed the request, it did, however, go on to explain that it considered that the request for a statement of reasons failed on the ground that the applicant had not been affected by an act of a public body. The email also set out details of the applicant's right to apply for internal review. Arising from the understandable confusion caused by exchange of emails, the applicant subsequently informed the Department, by email dated 29 August 2014, that he wished to change the wording of his request to a request for reasons why the Department did not follow its own written guidelines and customer charter in relation to his email [dated 13 June 2014]. The Department replied that same day and informed the applicant that there was no decision to withhold a benefit from him but went on to explain why it had not adhered to its customer charter. As the applicant disputed the Department's contention that no benefit had been withheld, he again emailed the Department on 1 September 2014 and indicated that he wished to proceed with his FOI request. The Department refused to provide a statement of reasons in its decision on 3 September 2014, on the ground that the applicant had not been affected by the act of a public body as required by section 18 of the FOI Act.
According to the Department, the applicant applied for an internal review of that decision by email dated 5 September 2014. The Department issued an internal review decision by letter dated 3 October, 2014, upholding its original decision on the grounds that the applicant had not demonstrated that a benefit had been conferred upon or withheld from him as a result of the Department's lack of response and therefore he had no material interest in the matter as required by the Act. On 8 October 2014 the applicant applied to the Commissioner for a review of the Department's decision.
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.
I note that the applicant was invited to make a submission in support of his application, but chose not to do so. I have decided to conclude this review by issuing a formal decision. In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Department, and to the provisions of the FOI Act.
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 not to follow its own written guidelines and customer charter in relation to his email dated 13 June 2014.
Section 18 of the FOI Act provides that:
"(1) The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person-
(a) of the reasons for the act, and
(b) of any findings on any material issues of fact made for the purposes of the act."
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."
Furthermore, section 18(6) of the FOI Act states that "'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."
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. This Office considers that an applicant seeking a statement of reasons under section 18 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 a matter affected by the act for which a statement of reasons is sought.
Clearly, there will be many acts or 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."
The applicant asserts that the "decision" of the Department in this case was its failure to reply to his email within the time frame set out in its customer charter. He asserts that the Department's failure withheld a benefit from him which ordinarily accrues to people in general, that benefit presumably being receipt of a response within a time frame set out in the customer charter. Having regard to the then Commissioner's comments in Case 99212 above and to the subject matter of the applicant's email, which was simply a query as to whether an email he had received from the Minister's Private Secretary as a reply to a question he had previously raised, it does not appear to me that the Department's failure to respond to his email within the time frame set out in its customer charter involved the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. Furthermore, no argument has been made that any reasons the Department might have had for failing to reply to his email within the set time frame would have a bearing on the conferring or withholding of such a benefit. I am therefore of the view that the applicant did not have a material interest in this matter, within the meaning of section 18(5) and 18(6) of the FOI Act, and that the Department was thus justified in its refusal to provide a statement of reasons in this case. I find accordingly.
I note, in any event, that the Department explained, in an email dated 29 August 2014, that its failure to adhere to its customer charter was due to "the busyness of the Minister's Office at that particular time of year". It apologised for not adhering to its customer charter and added that it was dealing with "an increased workload, while operating on a reduced pool of staff due to annual leave and other commitments during the summer months". Had I found that the applicant was entitled to a statement of reasons under section 18, it seems to me that the Department's email of 29 August 2014 constitutes an adequate statement of reasons for its failure to reply to his email within the time frame set out in its customer charter.
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.