Whether the Council was justified in its decision to refuse to grant a request for a statement of reasons under section 10 of the FOI Act relating to the placement of a pipe on his land and its subsequent refusal to remove the pipe
10 April 2018
On 14 October 2017 the applicant applied to the Council for a statement of reasons regarding its decisions to
(a) put a pipe into his land, draining another private property
(b) refuse to remove the pipe
(c) give false information to the Office of the Ombudsman
(d) not stop water flowing across an adjoining road
As the Council failed to respond within the statutory time frame, the applicant sought an internal review of the deemed refusal of his request. The Council issued its internal review decision on 18 December 2017, in which it refused to provide a statement of reasons on the ground that the applicant had not demonstrated a material interest for the purposes of section 10 of the FOI Act. On 18 December 2018, the applicant sought a review by this Office of that decision.
I have decided to bring this review to a conclusion by way of a formal, binding decision. In conducting this review, I have had regard to communications between the applicant and the Council concerning the request, and to the correspondence between this Office and both the applicant and the Council on the matter.
Scope of Review
This review is concerned solely with the question of whether the Council was justified, under section 10, in refusing to provide the applicant with a statement of reasons concerning the acts identified in his request.
Analysis and Findings
The matters for which reasons are sought in this case have their background in events that occurred at an unspecified time quite a number of years ago. It does not appear to be in dispute that at some stage in the past the Council put a pipe under a public road and into a drain inside the boundary of the applicant's property to alleviate flooding from neighbouring land across the road and that following representations from the applicant in 2011, the Council sealed the pipe in late 2011. Neither does it appear to be in dispute that the applicant has sought the removal of the pipe and that the Council has refused to do so.
Paragraph (a) of section 10(12) of the FOI Act provides that an application for a statement of reasons under section 10 must be made within 12 months after the date on which the person who is affected by the act becomes aware of it. However, paragraph (b) provides that where the particular circumstances warrant it, the FOI body may accept an application outside the time limit specified in paragraph (a). The relevant acts in this case occurred outside of that 12 month limit. While the Council made no reference to section 10(12) in its communications with the applicant, it decided to process the request. Accordingly, I have proceeded on the basis that the Council acted in accordance with the provisions of paragraph (b).
The Council did not provide a specific response to each act identified by the applicant. Instead it refused to provide a statement of reasons on the ground that the applicant had not demonstrated that he had been affected by an act of the Council or how he had been affected.
Section 10(1) provides that a person who is affected by an act of an FOI 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 the act. Section 10(5) provides that a person has a material interest in a matter affected by an act 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." For the purposes of section 10, an act of the body includes a decision of the body.
An application under section 10 should identify a specific act of the FOI body for which a statement of reasons is required. I am satisfied that parts (a) and (b) of the applicant's original application for a statement of reasons comprise acts of the Council for which the applicant is entitled to a statement of reasons. As I have outlined above, it does not appear to be in dispute that at some stage in the past the Council put a pipe under a public road and into a drain inside the boundary of the applicant's property and that the Council subsequently refused to remove the pipe. It also appears that the applicant believes that his property was flooded and damaged as a result of water flowing through the pipe in question. The Council's position is that the pipe is now sealed and it does not accept that this action has had any adverse impact on the applicant's property.
This Office has no role in examining whether or not the placing of the pipe in the first instance or the subsequent refusal to remove the pipe has resulted in damage to the applicant's property. However, even if I were to accept that the acts in question did not result in the damage alleged, this does not mean that the applicant was not affected by those acts and that he does not have a material interest in a matter affected by those acts. In my view, the mere existence of the pipe on the applicant's land is sufficient for him to be deemed to have been affected by the acts of the Council.
In the circumstances, I am satisfied that the applicant has a material interest in a matter affected by both the Council's decision to place the pipe on his property and its subsequent refusal to remove it. I find, therefore, that the Council was not justified in refusing to provide a statement of reasons for the acts identified by the applicant at parts (a) and (b). Accordingly, I direct the Council to provide the applicant with a statement of reasons for those acts.
In relation to part (c) of the request, the applicant has presented no evidence to support his allegation that the Council gave false information to the Office of the Ombudsman, nor is it the function of this Office to examine such an allegation. In any event, section 10 does not apply to every act of a public body. Taking section 10 as a whole, this Office interprets the word "act" in the section 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 10 does not apply to that act. Accordingly, I find that the Council was justified in refusing to provide a statement of reasons for the act identified by the applicant at part (c).
Having carefully considered the wording of the original application for a statement of reasons, I am satisfied that the applicant has not identified a specific act of the Council at part (d). It seems to me that in so far as the applicant wants to know why the Council did not stop water flowing across the road, the relevant acts of the Council are as outlined at parts (a) and (b). I find that the Council was justified in refusing to provide a statement of reasons for the act identified by the applicant at part (d).
Having carried out a review under section 22(2) of the FOI Act I hereby vary the decision of the Council. I direct the Council to provide a statement of reasons for its decision to put a pipe under a public road and into a drain inside the boundary of the applicant's property and for its subsequent decision to refuse to remove the pipe.
Right of Appeal
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.