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Whether the Department was justified in deciding to refuse the applicant's request for a statement under Section 18 of the FOI Act on the grounds of Section 18(5) of the Act.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (FOI Act)

Background

The applicant applied to the Department on 23 April 2012 for "a formal statement under Section 18 of the FOI Act detailing the reasons why I was not shortlisted" for the next stage of an internal competition [......] . The Department refused the application on 22 May 2012 on the grounds of Section 18(5) of the FOI Act. The applicant made an internal review application to the Department on 23 May 2012. The Department's internal review decision of 14 June 2012 affirmed the original decision. The applicant made an application for review to this Office, dated 14 June 2012, received on 19 June 2012.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, and to the provisions of the FOI Act.

Scope of the Review

This review is confined solely to the question of whether the applicant is entitled to a statement of reasons as to why he was not shortlisted for the next stage of the particular internal employment competition.

Analysis and Findings

Section 18
Section 18 of the FOI Act provides:-

(1) The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person-

(a) of the reasons for the act, and

(b) of any findings on any material issues of fact made for the purposes of the act.

Furthermore, section 18(5) provides:

(5) For the purposes of this section a person has a material interest in a matter affected by an act of a public body or to which such an act 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.

Section 18(6) of the FOI Act states that:

''benefit", in relation to a person, includes-

(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.

Previous decisions of the Commissioner have addressed the issue of "material interest" for the purposes of Section 18(5), and the interpretation of an "act" of a public body for the purposes of Section 18. Case Number 090132 (2009) Ms C and the Health Service Executive, and Case Number 99212 (2001) Mr X and the Department of Agriculture, Food and Rural Development and other decisions referred to are available on our website www.oic.ie.

In my view, the rationale underlying the previous decisions of this Office may be derived from the terms of section 18(5) itself, which excludes acts which have general applicability. Rather, the act must affect a person particularly, albeit not necessarily exclusively. Section 18(5) sets the requirements for establishing the standing necessary to entitle a person to a statement of reasons for an act of a public body. Like section 17, which allows for the amendment of personal information, and requests under section 7 for access to records containing personal information only, no up-front fee applies to section 18 applications; I take this to be a recognition that section 18 is intended to apply with respect to acts which relate personally or particularly to the person concerned.

An example of a typical act in which the person concerned would have a material interest is an administrative decision on an application for social welfare or other such benefits. Where the act does not relate individually to the person concerned in such a manner, the decision maker must have regard to all of the relevant circumstances in determining whether the applicant is affected in at least some particular manner as compared to others. If others are similarly affected, this does not necessarily remove the act from the ambit of section 18. However, the greater the number of persons similarly affected, the more general and remote the interests of the persons affected are likely to be.

In this case, the question arises as to what is the "act" for which the statement of reasons is sought. In Case Number 99212, the then Information Commissioner set out that it seemed to him that the word "act" in Section 18 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, he said 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. I see no reason to depart from this interpretation.

In this review, the act in question is the decision of the Department not to shortlist the applicant for the next stage of the internal competition. In its submissions, the Department appears to be arguing that the "act" in question related to the positive selection of applicants who would go forward to the next stage of the competition and that, in effect, there was no "act" as a consequence of which others were excluded from proceeding to the next stage of the competition. Furthermore, the Department argues that there was no discrimination between those who were not selected to go forward to the next stage of the competition. I cannot accept the argument that there was no "act" which had negative consequences for the applicant and, indeed, others.

The Department's decision was made on the basis of the application for the competition submitted by the applicant, in accordance with the criteria set out by the Department when it invited applications for the competition. I am satisfied that the Department's decision not to shortlist the applicant for the next stage of the internal competition in question is an act of the public body which, in this case, withholds from the applicant a benefit and, accordingly, is an act to which section 18 of the FOI Act applies and in which the applicant has a material interest. As regards the issue of material interest, I accept that the withholding of the benefit in this case affected others, and not just the applicant. While the Department has not said how many other candidates were also excluded from the next stage of the competition, I do not accept that such a group might be regarded as a "class ... of significant size" such as would rule out a material interest.

I find, therefore, that the applicant is entitled to a statement of the reasons under Section 18 for the act in question.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby annul the decision of the Department and direct that a statement of reasons be issued to the applicant, in accordance with Section 18 of the Act.

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. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Fintan Butler
Senior Investigator
22 August 2013