Case number: 150066

Whether the Defence Forces has fulfilled its requirements under section 10 of the FOI Act in relation to the applicant's request for a statement of reasons for the responses it gave to the Department of Public Expenditure and Reform (the Department) on the applicant's role with the Defence Forces in connection with a claim for incremental credit

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The background to this review lies in a decision of the Department to refuse the applicant's request for incremental credit on the basis of his prior service with the Defence Forces. It appears that the Department sought clarification from the Defence Forces as to the nature of his role and that subsequently the Department refused the application for incremental credit on the basis of the information provided by the Defence Forces. On 21 November 2014, the applicant applied to the Defence Forces for a statement of reasons as to why the Defence Forces responded as it did.

On 26 January 2015, the Defence Forces provided a statement of reasons for the nature of its responses to the Department. The applicant sought an internal review of the Defence Forces' decision on 29 January 2015, following which the Defence Forces provided a more detailed statement of reasons on 27 February 2015. The applicant applied to this Office for a review of the Defence Force's decision on 3 March 2015

On 24 March 2015, the applicant made a submission on the matter to this Office. During the course of this review, Mr Benjamin O'Gorman of this Office informed the applicant of his view that the Defence Forces was not required to provide a statement of reasons in this case. The applicant indicated that he required a formal decision on the matter. Accordingly I have decided to conclude this review by issuing a formal, binding decision. In conducting this review I have had regard to the provisions of the FOI Act, to the decisions of the Defence Forces on foot of the applicant's request, and to the applicant's submission to this Office.

Scope of the Review

This review is concerned solely with the question of whether the Defence Forces has complied with the provisions of section 10 of the FOI Act in relation to the applicant's request for a statement of reasons for the responses it gave to the Department on the applicant's role with the Defence Forces in connection with a claim for incremental credit.

Preliminary Matters
In his submission to this Office, the applicant made multiple references to Data Protection matters and alleged breaches of Data Protection legislation by the Defence Forces. Issues concerning the application of the Data Protection Acts are a matter for the Data Protection Commissioner, and the scope of this review is as outlined above.

Analysis and Findings

Section 10 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 10(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.

This Office has previously set out its approach to, and interpretation of, the equivalent provision of the FOI Acts 1997 & 2003 (Section 18). While not identical, section 10 is quite similar to that equivalent provision. In so far as it applies to this review, I am satisfied that the approach previously adopted remains relevant to my consideration of section 10 of the Act of 2014.

In Case No. 99212, the then Commissioner explained that the requirement to provide a statement of reasons does not apply to every action of a public body. He stated that taking the section as a whole, it seemed to him 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 the public body is not required to provide a statement of reasons for that act.

It follows 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. There will be many instances where a number of secondary actions/decisions are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. While the person may be entitled to a statement of reasons for the substantive decision, this Office considers that section 10 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision.

Section 10(13) 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.

In this case, the applicant is seeking a statement of reasons for the nature of the response the Defence Forces gave to the Department on the applicant's role with the Defence Forces in connection with a claim for incremental credit. It seems to me that the substantive decision taken in this case was the decision to refuse the applicant's claim for incremental credit. This decision was taken by the Department, not the Defence Forces. While I fully accept that the information provided by the Defence Forces is likely to have influenced the Department's decision, I do not accept that the act of providing that information conferred upon or withheld from the applicant a benefit.

It appears that the applicant disagrees with the Defence Forces on the description provided by the Defence Forces as to the nature of his role. It seems to me that he is, in essence, seeking to use section 10 to challenge the accuracy of the information the Defence Forces gave to the Department. The purpose of section 10 is to require the public body to state what were its reasons for the particular act or decision so that the requester can understand without undue difficulty why the public body acted as it did. It does not provide for an adjudication on whether the reasons given are a correct or sufficient basis for the act or decision. Section 10 is not concerned with the appropriateness, or otherwise, of administrative actions taken by public bodies, nor does this Office have a role in examining such matters.

Having carefully considered the applicant's submission and correspondence with the Defence Forces, I am not satisfied that the act identified by the applicant conferred upon or withheld from him a benefit. It follows, therefore, that I am not satisfied that he has, for the purposes of section 10, identified an act of the Defence Forces by which he is affected and that he has a material interest in a matter affected by such act or to which the act relates. I find, therefore, that the applicant is not entitled to a statement of reasons under section 10 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, as amended, I hereby vary the decision of the Defence Forces in this case and find that the applicant is not entitled to a statement of reasons for the act identified 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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.


Stephen Rafferty
Senior Investigator