Whether the Council has complied with the provisions of section 10 of the FOI Act in response to the applicant’s request for answers to a list of questions she submitted in relation to her application for urgent accommodation
27 September 2019
On 29 March 2019, the applicant emailed the Council in which she indicated that she was making a request under the FOI Act for information pertaining to decisions that affected her in connection with her application for urgent accommodation. She noted that under the Act, she was entitled to know the reasons for decisions made which affected her and she enclosed a list of 18 questions for which she was seeking a response.
On 30 April 2019 the Council informed the applicant that her queries would be dealt with outside of the FOI process and it enclosed a list of responses prepared by a member of the Council’s staff who had engaged with the applicant in relation to her application. In response, the applicant indicated that she required the matter to be dealt with in accordance with the provisions of the Act.
On 9 May 2019, the applicant sought an internal review of what she regarded as the deemed refusal of her request in light of the Council’s failure to provide a decision in accordance with the provisions of the Act. On 24 May 2019, the Council informed the applicant that it had decided to grant access to the information sought and it provided a response to a number of the 18 questions the applicant had submitted. Subsequently, on 30 May 2019, it provided responses to the remaining questions which it had omitted from its earlier response due to an administrative oversight.
On the same day, the applicant sought a review by this Office of the Council's decision. She argued that the responses to her queries were inadequate and vague.
During the course of the review, and following correspondence with Ms Whelan of this Office, the Council provided the applicant with statements of reasons relating to the processing of her request for priority social housing and for emergency accommodation. Following receipt of those statements, the applicant engaged in further correspondence with this Office on the matter.
Having regard to that correspondence, I have now decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and the Council as set out above and to the communications between this Office and both the Council and the applicant on the matter.
Scope of Review
This review is concerned solely with the question of whether the Council has complied with the provisions of section 10 of the FOI Act in response to the applicant’s request for answers to a list of questions she submitted in relation to her application for urgent accommodation.
Before I address the substantive issues arising in this case, I wish to make a number of preliminary comments, the first of which concerns the manner in which the Council responded to the applicant’s original request. Section 10 of the FOI Act provides for a right of individuals to be given reasons for certain acts of FOI bodies that affect them. The Council did not treat the applicant’s email of 29 March 2019 as an application under section 10, given that it contained a list of questions, at least some of which were requests for information and not requests for reasons for certain acts.
Under section 10(11) of the Act, an application which does not purport to be an application under section 10 but which applies for information, access to which can be obtained only be way of an application under section 10, the body must offer assistance to the individual in question in the preparation of such an application.
In my view, it is clear from the applicant’s email of 29 March 2019 that she was seeking to exercise her rights under section 10, notwithstanding the form of her request for information. It would have been helpful had the Council engaged with the applicant with a view to helping her frame an application that meets the requirements of section 10. Nevertheless, I note that the Council sought to provide the information the applicant was seeking regardless of the form of the request.
Secondly, on a number of occasions in her correspondence with this Office, the applicant expressed concerns about the manner in which the Council had treated her in relation to her application for accommodation. Among other things, she also alleged that the Council had discriminated against her because of her disabilities. I note that Ms Whelan of this Office has previously explained to the applicant that we have no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Furthermore this Office can make no finding of maladministration or discrimination on the part of FOI bodies.
Finally, I should explain that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
Analysis and Findings
Section 10 of the FOI Act 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 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 an FOI 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."
"Benefit" is defined at section 10(13) of the Act as including
"(a) any advantage to the person,
(b) in respect of an act of an FOI body done at the request of the person, any consequence or effect thereof relating the person, and
(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person."
This Office has previously set out its approach to, and interpretation of, section 10 and has established the following principles:
• As section 10 requires the body to give reasons for the act or decision, it follows, therefore, that an application for a statement of reasons must identify the act or decision for which the statement is sought.
• The applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of an FOI body; i.e. the applicant bears the burden of showing that he or she has a material interest in the matter. The FOI Act is silent as to the standard of proof which should apply in such cases. The Commissioner takes the view that the standard of proof required is that of "the balance of probabilities".
• The requirement to provide a statement of reasons does not apply to every action of an FOI body. The Commissioner takes the view that the Oireachtas could not have intended that FOI 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 FOI body and its officials.
• Taking section 10 as a whole, the Commissioner’s view is that the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) 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.
• 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, the Commissioner 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.
• The requirement on an FOI body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or had been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process.
I have carefully examined all 18 parts of the applicant’s original request. I am satisfied that parts 2, 2(a), 5, 5(a), 5(b), and 9 are requests for information and do not identify acts of the Council for which statements of reasons are sought.
With the exception of part 6(a) which I will address separately below, I am also satisfied that the applicant is not entitled to a statement of reasons for any of the acts identified in the remaining parts of her request. For example, she sought reasons why a named official failed to email her with progress of her application (part 1), why the official failed to respond to her phone calls (part 3), and why a form was sent to a wrong address (part 7).
I am satisfied that the applicant does not have a material interest in a matter affected by the acts in question or to which they relate as none of the acts, in my view, can reasonably be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit.
At part 6(a), the applicant sought reasons for the decision not to process her request for emergency assistance and priority social housing. It seems to me that this part is, at least, related to the substantive act or acts of the Council for which it is required to provide a statement of reasons.
In its submissions to this Office, the Council stated that it is not the case that it decided not to process the applicant’s request for emergency accommodation or priority social housing. Rather, it stated that on assessment of the presenting facts, it decided to deem her homeless in accordance with section 2 of the Housing Act 1988 and that this is the highest priority category of need for social housing purposes.
In a statement that it released to the applicant on 11 September 2019, the Council added that the application for social housing had not been progressed because the applicant had not attended a required Housing Needs Assessment (HNA). The Council explained that the applicant was invited to a HNA at the earliest possible opportunity on two occasions, but was unavailable to attend. The Council explained that a HNA is required for all approved applicants prior to an offer of social housing being made.
With regard to the provision of emergency homeless accommodation, the Council stated that the duty social worker’s understanding was that the applicant would be sharing with friends in the short term and did not wish to be placed in emergency accommodation in Galway City. It stated that the duty social worker also indicated that she outlined to the applicant that there was no designated emergency accommodation available in a specified area of Galway.
In her subsequent correspondence both with the Council and with this Office, the applicant disputed the duty social worker’s recollection of their engagements. However, while Ms Whelan afforded the applicant a further opportunity to make an additional submission, she has not done so to date. Furthermore, as I have outlined above, this Office has no role in investigating the administrative actions of the Council. In the circumstances, I am satisfied that the Council has provided an adequate statement of reasons in relation to the manner in which it processed the applicant’s applications for emergency accommodation or priority social housing.
I find, therefore, that the Council has complied with the provisions of section 10 of the FOI Act in response to the applicant’s request for answers to a list of questions she submitted in relation to her application for urgent accommodation.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council on the grounds that it has complied with the provisions of section 10 in this case.
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.