Case number: 180264

Whether the HSE was justified in refusing to grant Ms X's application under section 10 of the FOI Act for a statement of reasons concerning the HSE's decision to move her son from one facility providing day services for young adults to another.

20 September 2018

Background

On 11 December 2017, Ms X made an application under section 10 of the FOI Act and a request for records under section 7 of the FOI Act to the HSE. Ms X said that her application and request concern a letter sent to her by the HSE regarding its decision to relocate day services for young adults from one location, where her son attends, to another. 

In so far as the section 10 application is concerned, the applicant sought a statement of reasons as to why her son is being moved, the number of service users that are proposed to be at the new location with him and an explanation as to why the HSE did not follow particular guidelines in his case. 

The HSE did not issue a decision on either the section 10 application or the section 7 request within the time frame specified in the Act, effectively refusing them. The applicant sought an internal review of the HSE's effective refusals on 2 February 2018. On 23 February 2018, the HSE issued what I am satisfied in the circumstances amounts to an internal review decision. While it dealt with access to records, it did not deal with the section 10 application and thus effectively affirmed the HSE's earlier refusal of that application.  

On 5 July 2018, the applicant sought a review by this Office of the HSE's decision on her section 10 application and request for records dated 11 December 2017 as well as a further request for records dated 20 December 2017. The HSE's decision on the requests for records will be dealt with in my decisions in Case Numbers 180263 and 180265.

I have now decided to conclude my review of the HSE's decision on the section 10 application by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the HSE, and the applicant. I note that the applicant did not reply to this Office's letter to her of 22 August 2018. I have had regard also to the provisions of the FOI Act. 

Scope of Review

This review is confined to whether or not the HSE has justified its refusal of Ms X's section 10 application of 11 December 2017.

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. 

Further to section 10(6) of the FOI Act, the Minister for Public Expenditure and Reform has made Regulations (i.e. Statutory Instrument No. 53 of 2017) that enable a parent or guardian of a person to apply on that person's behalf for a statement of reasons in certain circumstances. Generally speaking, the circumstances are where the person is a minor, or is of full age but for particular reasons is incapable of exercising his or her rights under the FOI Act. 

It is important to note that the requirement to provide a statement of reasons does not apply to every act of an FOI body. Furthermore, 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.

The HSE has failed to decide whether in the first place the applicant is entitled to a statement of reasons on behalf of her son and in the second place, on the substance of any statement to which she may be entitled. While this is frustrating for the applicant, the fact of the matter is that there is nothing for me to review in such circumstances. It would not be appropriate for me to make a first instance decision on this application in the absence of any consideration at all by the HSE decision makers of whether the applicant is entitled to a statement of reasons and, if so, what, in all the circumstances, that should be.  

The most appropriate decision for me to make is to annul the HSE's effective refusal of the applicant's section 10 application and remit it for fresh consideration by the HSE in line with the requirements of the FOI Act. The effect of this is that the HSE is required to make a new, fresh instance, decision on the application. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's effective refusal of the applicant's section 10 application. In the circumstances of this case, a remittal of that application is appropriate. I direct the HSE to undertake a fresh decision making process on the application, and to inform the applicant of the outcome in accordance with the requirements of the FOI Act. 

Given the lapse of time since the applicant first made her section 10 application, I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the HSE to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act. 

However, if the HSE accepts my decision, I hope that it will start the fresh decision making process as soon as possible rather than waiting for the statutory deadline to expire. 

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. 

Elizabeth Dolan
Senior Investigator