Case number: 99212, 99213, 99214 and 99215
Request for reasons for various acts of the Department - adequacy of statement of reasons given, whether the Department is required to give reasons for every action - section 18
The requester made four separate applications to the Department of Agriculture, Food & Rural Development for a statement of reasons for actions taken by the Department and its officials in its dealings with him in respect of the 1999 Sheep Headage Scheme. The Department provided him with a statement of reasons in respect of two of his applications and refused to provide a statement of reasons in the remaining two cases on the ground that the requests did not constitute valid section 18 requests. The requester applied for a review of the Department's decision in all four cases.
During the course of the review the Department provided the requester with revised statements of reasons for its actions in the two cases where it had previously issued statements. The Commissioner found that the revised statements adequately explained, in a clear and intelligible manner, why the Department acted as it did. He found that the Department had fulfilled its obligations as provided for in section 18 in the two cases in question.
In the remaining two cases the actions for which statements of reasons were sought included the alleged failure of two officials of the Department to supply the requester with certain documentation and alleged comments made by them. The Commissioner found that section 18 does not apply to every action of a public body. Taking section 18 as a whole, he interpreted the word "act" in the section as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit and, in addition, he found that 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.
By way of example the Commissioner explained that where a public official fails to provide a client with full or correct information and as a result, the client fails to obtain a benefit due, then a statement of reasons which meets the requirements of section 18 will enable the client to determine that the adverse effect resulted from the failure of the official to advise correctly. He considered, however, that section 18 would not require the public body to give reasons why the official failed to give full or correct advice, although a case may lie against the public body for maladministration. The Commissioner found that the requester was not entitled to a statement of reasons for the alleged failure of the two officials of the Department to supply him with certain documentation and for alleged comments made by them.
Our Reference: 99212, 99213, 99214 and 99215
Dear Mr X
I refer to your applications under the Freedom of Information Act, 1997 (" the FOI Act") for review of the decisions of the Department of Agriculture, Food & Rural Development ("the Department") relating to your requests for reasons for various acts of the Department detailed in your requests of 10 March, 1999. I have decided to deal with all four applications together in view of their common subject matter.
I have now completed my review of the Department's decisions. In carrying out that review I have had regard to
I note that, during the course of the review, Mr Rafferty indicated to the Department that he believed it had furnished an inadequate statement of reasons in case numbers 99212 and 99213 and he asked the Department to consider the issue of a revised statement in each case. This the Department duly did on 6 February, 2001. I note that Mr Rafferty wrote to you on 31 January, 2001 to explain that, in his view, the revised statements prepared by the Department are adequate and he invited you to settle your applications for review in these cases.
In case numbers 99214 and 99215, the Department refused to issue a statement of reasons as it did not consider that your requests for reasons constituted valid requests under section 18 of the FOI Act. I accepted both applications for review having deemed the failure of the Department to reply to your requests to be a refusal of your requests in accordance with section 41(3) of the FOI Act. I note that Mr Rafferty, in his letter of 31 January, 2001, also set out his preliminary views in respect of case numbers 99214 and 99215 and invited you to make any further comments which you consider may be of relevance to your requests.
As I have not heard from you in respect of case numbers 99212 and 99213 and having considered the comments you made during your telephone conversation of 5 February, 2001 with Mr Rafferty in respect of case numbers 99214 and 99215, I have decided to conclude my review by way of a binding decision.
My review is concerned solely with the question of whether the revised statements of reasons dated 6 February, 2001 provided by the Department in respect of case numbers 99212 and 99213 are adequate for the purposes of section 18 of the FOI Act and whether the Department was entitled to refuse to issue a statement of reasons in case numbers 99214 and 99215.
As you are aware, 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 and of any findings on any material issues of fact made for the purposes of that act. 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 my role is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. is the statement given adequate? My remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought.
At this point it would be useful to set out what I consider should be the principal features of a statement of reasons having regard to section 18. In my 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 requester 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, I do not consider that a statement should necessarily have to contain a detailed clarification of all issues identified by a requester as relevant to a particular act or decision.
Section 34(7) of the FOI Act provides that I may, at any time during the course of my review, endeavour to effect a settlement between the parties concerned. In a situation where I am of the view that a public body has not given an adequate statement of reasons in accordance with section 18, I consider it reasonable to advise the public body of my views and to determine if the body would be willing to issue a revised statement which addresses the inadequacies, as I see them, of the original statement.
In this case Mr Rafferty of my Office was of the view that the initial statements given in case numbers 99212 and 99213 were not satisfactory. He considered, and I agree, that the Department did not present a clear unambiguous explanation for its actions in the statements. Following consultation with my Office, the Department issued revised statements in its letter of 6 February, 2001. Having examined the statements, I am satisfied that they adequately explain, in a clear and intelligible manner, why the Department acted as it did. I find, therefore, that an adequate statement of reasons has now been provided as required under section 18 of the FOI Act in respect of case numbers 99212 and 99213.
In these cases, you sought reasons for various actions of two officials of the Department, namely [Official 1] and [Official 2]. The actions included the alleged failure of the two officials to supply you with certain documentation and alleged comments made by them. As Mr Rafferty advised you in his letter of 31 January, 2001, section 18 of the FOI Act provides that to be entitled to a statement of reasons for an act of a public body, the applicant must be affected by the act and must have a material interest in a matter affected by the act or to which it relates.
During your telephone conversation of 5 February, 2001 with Mr Rafferty, you pointed out that section 18(5) of the FOI Act provides that a person has a material interest in a matter affected by an act of a public body 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. It seems to me that your case is that the alleged failures of the officials in question might have resulted in your incurring a penalty under the Sheep Headage Scheme and did, in fact, have other adverse consequences for you. You argue that this means that you have such a material interest and have an entitlement, therefore, to a statement of reasons as to why the two officials acted as they did.
In my view, this interpretation is incorrect. In my view, section 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.
Let me try to explain this by reference to a hypothetical situation. If, for example, a public official fails to provide a client with information which should have been given or gives information which is misleading and if as a result, the client fails to obtain a benefit due to him/her or suffers a penalty, then a case may lie against that public body for maladministration which has had an adverse effect on the client. Clearly, while the adverse effect may be directly due to factors within the control of the client (e.g. failure to apply for a benefit or failure to apply in time for a benefit) it is also due indirectly to the failure of the official to give the necessary or the correct advice. In such a case section 18 gives the client a right to be given reasons why he/she suffered the adverse effect. 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 relation to your particular case, I am satisfied that any reasons for the alleged failure of the two officials to supply you with certain documentation and alleged comments made by them did not affect the outcome of your application for headage payments.
I note that, in your recent conversation with Mr Rafferty, you also pointed to other matters which you claimed involved the withholding of a benefit such as the inconvenience you suffered in travelling to Portlaoise to examine the section 16 guidelines only to find that the guidance notes you sought were never published. You argue that the alleged failure of the officials concerned to provide you with a copy of the guidelines obliged you to travel to Portlaoise. You argue, that as a result, you suffered the disadvantage of having to travel and the disadvantage, when you got there, of finding that the guidelines were not in the section 16 manual. With regard to the latter aspect, it seems to me that even if the failure of the Department to publish guidelines in its section 16 manual involved the withholding of a benefit, it must have involved its withholding from a class of persons which is of a significant size and that you were not specially disadvantaged by this omission. In these circumstances, section 18 does not require that you be given reasons why the guidelines were not included in the section 16 manual (but see my later comments). With regard to the former aspect, your decision to inspect the section 16 manual necessitated your travelling to a location where it was available for inspection but a similar necessity would arise for anyone else seeking to inspect the manual. In any event, as I have already said, I do not believe that section 18 requires the Department to give reasons for the alleged failure of its officials to give you full information, e.g. lack of knowledge etc., although I note once again that any such failure may constitute maladministration.
I find, therefore, that you are not entitled to a statement of reasons in case numbers 99214 and 99215. In making these findings I do not wish to minimise the obligations on the Department to provide accurate advice and information to claimants about the schemes it administers. However, any failure by the Department in this matter cannot be remedied by section 18. That section is concerned with the giving of reasons for acts of a public body rather than requiring a public body to justify its actions.
During the course of my review an issue arose as to whether the guidelines you sought should have been included in the Department's published section 16 manual. I raised this matter with the Department. I understand that the guidelines in question are no longer applicable as the Sheep Headage Scheme in disadvantaged areas is being replaced this year by a system of area based compensatory allowances in disadvantaged areas. I have been advised that the Department is currently in the process of updating its section 16 manual which it hopes to complete by April, 2001 and that revised guidance notes will be included in the updated manual. I wish to take this opportunity to remind the Department and public bodies generally of subsection (3) of section 16 which requires public bodies to ensure that a person is not subjected to any prejudice by a failure to publish section 16 material or by the publication of incomplete or inaccurate material.
Having carried out a review under section 34(2) of the FOI Act I hereby annul the decision of the Department in case numbers 99212 and 99213. In accordance with section 34(2)(b)(ii) of the Act, I have decided that the revised statement of reasons dated 6 February, 2001 meets the requirements of section 18 of the Act in these cases. I affirm the decision of the Department in case numbers 99214 and 99215.
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 of this letter.