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Whether the Board was justified in its decisions relating to the applicant's applications for statements of reasons pursuant to section 18 of the FOI Act

Review application under the Freedom of Information Acts 1997 & 2003 to the Information Commissioner

Background

This decision relates to three requests to the Board by the applicant. As the parties to each review are identical, and given that each review relates to an application under section 18 of the FOI Act, in my view it is appropriate that the three applications be considered together. The background to the requests is as follows:-

Case 130309
On 22 September 2013, the applicant submitted a Freedom of Information request to the Board, seeking a statement of reasons as to why "a change of solicitor is not warranted in the circumstances" of her case. This request arose on foot of a letter sent to the applicant on 19 September 2013, whereby the Board had indicated that a change of solicitor would not be granted to her. The applicant set out in her request the significant level of detail to which she submitted that she was entitled in the Board's response thereto.

On 25 October 2013, the Board responded to the applicant's request, stating that the letter dated 19 September 2013, which had already been received by her, contained an adequate statement of reasons. The applicant sought an internal review of this decision by way of letter dated 31 October 2013, and made further submissions at that point. By way of letter dated 22 November 2013, the applicant was informed that the internal reviewer had decided to uphold the Board's decision. On 27 November 2013, the applicant sought a review by this Office of the Board's decision.

Case 140091
On 7 January 2014, the applicant submitted a Freedom of Information request to the Board, seeking a statement of reasons as to why a named solicitor with the Board, to whom the request was addressed, had stated that "a conflict of interest" would arise were he to act for the applicant in particular litigation. The solicitor had written to the applicant on 5 February 2013, setting out his view that a conflict would arise, and his reasons for forming this view. The applicant again set out the significant level of detail to which she submitted that she was entitled in response to her request under section 18 of the FOI Act.

On 31 January 2014, the Board responded to the applicant's request refusing to furnish a statement of reasons, primarily on the basis that the decision in question was not an "act" for the purpose of section 18 of the FOI Act. The Board's decision maker furthermore stated that, in any event, in his view the letter dated 5 February 2013, which had already been received by the applicant, contained an adequate statement of reasons. The applicant sought an internal review of this decision by way of letter dated 27 February 2014, and made further submissions at that point. By way of letter dated 26 March 2014, the applicant was informed that the internal reviewer had decided to uphold the Board's decision, but on the basis that the solicitor's letter dated 5 February 2013 contained an adequate statement of reasons. On 7 April 2014, the applicant sought a review by this Office of the Board's decision.

Case 140138
On 27 February 2014, the applicant submitted a Freedom of Information request to the Board, seeking a statement of reasons relating to the "decision not to reply to [her] letter and enclosed queries dated 7th January, 2014". The applicant had written to the Board on 7 January 2014, querying why it had not updated and published its "Section 16 Manual" relating to the FOI Act, its data protection policy, and materials relating to the Board's appeal processes.

On 2 April 2014, the Board responded to the applicant's request, stating that her application would be refused on the basis that the Board's failure or otherwise to update its Section 16 Manual, data protection policy and appeals procedures was not an "act" for the purpose of section 18 of the FOI Act. The Decision Maker also stated that the "non-reply to the letter must be seen in the context of the large volume of correspondence which you persist in sending to the Board". The applicant sought an internal review of this decision by way of letter dated 7 April 2014, and made further submissions. By way of letter dated 29 April 2014, the applicant was informed that the internal reviewer had decided to uphold the Board's decision. On 26 May 2014, the applicant sought a review by this Office of the Board's decision.

I note that Mr. Niall Mulligan of this Office informed the applicant by way of letter and email dated 23 July 2014 that the decisions of the Board in relation to each of her applications were justified in his view. The applicant indicated that she did not accept Mr Mulligan's conclusions, and furnished further submissions. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to the Board's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Board. I have also had regard to the provisions of the FOI Act.

Preliminary Matters

Mr Mulligan, in his email to the applicant dated 23 July 2014, stated that "[t]he Board, in its correspondence to [the applicant], has characterised each of these requests as frivolous and vexatious ... [h]owever, given that the Board did not purport to refuse your application on that basis, this assertion is not relevant to this review and will not be considered for present purposes."

The applicant took issue with this matter being raised, stating that the Board "has not characterised [her] Section 18 requests as frivolous and vexatious ... the word 'frivolous' is not used" (original emphasis). It may be noted, however, the Board's decision letter in case 130309 states that "[the decision maker] consider[s] that this request, along with a similar number of section 18 requests you have made in recent weeks, is frivolous, vexatious and unreasonable, and designed to do little else than discommode the Board in its efforts to provide a valuable public service at a time of severely curtailed human and financial resources."

In any event, I agree with Mr Mulligan's analysis, and consider that it is not necessary for the purposes of this review to make any findings as regards whether the applications at issue are frivolous or vexatious.

Each of these applications arise in the context of a protracted history of interactions between the applicant and the Board, involving a number of sets of litigation, both between the applicant as plaintiff against the Board, and between the applicant and third parties. The applicant is clearly dissatisfied at having been refused legal aid in relation to some of her legal issues, and with the manner in which her applications have been handled. She raises a multiplicity of issues going to the administrative practices of the Board, its organisational structure, the ability of named individuals to carry out their functions, her grievances regarding her purported treatment by the Board, and the substantive legal issue which gave rise to her interactions with the Board in the first instance.

Based on the applicant's submissions, it would appear that her substantive legal issue is difficult, complex and of a deeply personal nature. It is clear that the applicant feels very strongly about these issues, and she states that her situation has taken a severe emotional toll on her. While one may sympathise with the applicant, such considerations are beyond the scope of this review. The only role for this Office in relation to these cases is to review the application of the FOI Act by the Board.

Scope of the Review

This review is concerned solely with the questions of whether the Board was justified in its decision to refuse the applicant's applications under section 18 of the FOI Act, on the basis that the applicant did not have a material interest in the matters in question.

Analysis and Findings

Section 18 of the FOI Act provides that:-

"(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."

Section 18(5) provides that a person has a material interest in a matter affected by an act of public body or to which it relates:-

"[I]f 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) defines a "benefit" in relation to a person as including:-

"(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."

It will follow that a key consideration as to whether a person is entitled to a statement of reasons for an act of a public body is whether the act has the consequence or effect of conferring on, or withholding a benefit from the person and whether that benefit is also conferred on or withheld from persons in general or a class of persons as set out in section 18(5) of the Act. In Case No. 090131 (Ms. C & Department of Health and Children), the then Commissioner stated as follows:-

"I consider that the Applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of the public body; i.e. the Applicant bears the burden of showing that he or she has a material interest in the matter".

Clearly, there will be many acts/decisions taken by public bodies where section 18 has no relevance. As the then Commissioner stated in Case No. 99212 (Mr X and the Department of Agriculture, Food and Rural Development):-

"[S]ection 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."

In the course of this review, the applicant referred to the well-known case of Mallak v. The Minister for Justice [2012] 3 IR 297 in support of the proposition that she was entitled to a very extensive level of detail in relation to her applications. In that case, the Supreme Court considered the duty of decision makers to provide adequate reasons, in the context of judicial review proceedings. At para. 67, Fenelly J stated that: -

"In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or of the decision making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded."

Fennelly J went on to conclude at para. 69 that:-

"Several converging legal sources [including section 18 of the FOI Act] strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them."

Mr Mulligan, in correspondence with the applicant, referred her to the cases of EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] IESC 34, Faukner v. Minister for Industry & Commerce [1997] ELR 107, Governey v. Financial Services Ombudsman [2013] IEHC 403 and Kelly v. Commissioner of an Garda Síochána [2013] IEHC 158. In summary, Mr Mulligan stated that he was of the view that the interpretation of section 18 of the FOI Act which had been taken by the Commissioner in previous cases, including the conclusion that a statement of reasons, "must not necessarily contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision" (e.g Case 100123 Mr. X and the Department of Justice and Equality) is consistent with the ratio of the Mallak decision and the related case law he had raised with the applicant. I am satisfied that his analysis is correct in this regard.

The applicant emphasised in her submissions that she feels that she has not received statements of reasons that are "intelligible, adequate and truthful having regard to the particular circumstances of her case" (original emphasis). The applicant furthermore refers to her understanding of the administrative procedures which she feels should have been followed by the solicitor and the Board in relation to Cases 130309 and 140091 and to her interpretation of the Civil Legal Aid Act, 1995.

The Board submitted that, "[t]he FOI legislation does not require the board to change or reconsider a decision or to come up with additional, alternative or more detailed reasons for a decision simply because a person does not like or disagrees with the decision made" and that "[s]uch an approach would make public administration an impossible task."

In each of these cases, there is no evidence before me to contradict the Board's submissions as regards the material facts cited in the statements of reasons. I therefore have no reason to doubt the Board's bona fides in relation to these matters. The fact that an applicant may deem statements of reasons to be inadequate, contradictory or untrue does not mean that they will be insufficient for the purposes of section 18, so long as the statutory criteria are met. An analysis of whether maladministration may have occurred lies in the province of the Ombudsman, not the Information Commissioner. I note, also, that it is open to the applicant to have recourse to the Courts in relation to any purported infirmity disclosed in these statements of reasons, such as irrationality or a mistaken finding of fact.

Case 130309 and 140091
These applications deal with similar subject matter, and I think it appropriate to deal with them together. These cases related to a solicitor with the Board, who had been nominated to consider the applicant's application for legal aid in relation to a set of litigation. The solicitor in the first instance communicated to the applicant that he felt that he had a conflict of interest and gave reasons for his view. Subsequently, the Board rejected the applicant's request for another solicitor to be assigned, stating that it did not appear to the Board that a material conflict of interest arose. The applicant sought statements of reasons under section 18 of the FOI Act in relation to both matters. The procedural history of these applications is set out more fully above.

Case 140091 relates to the statement by the solicitor that he could not act, owing to a conflict of interest. The Board refused the applicant's request under section 18 of the FOI Act, on the basis that this "declaration" did not have the effect of conferring a benefit on the applicant, or withholding a benefit from her. The Board, in its decision, stated that "even if [the solicitor] was not in a position to act for you, and the Board had accepted that view, the Board would provide another solicitor for you ... [the solicitor] set this out clearly in the letter".

It seems to me that the benefit in question in this case is the provision of a solicitor by the Board to deal with the applicant's application for legal aid. The solicitor in question's declaration of a conflict of interest did not affect that benefit, as if such position were to be accepted by the Board, and that solicitor had ceased to act, another solicitor would have been assigned. Furthermore, even if the applicant was in a position to identify the withholding of a benefit arising from the assignment of a different solicitor, the fact remains that no such assignment took place. As the former Commissioner stated in Case No. 99212, "if the same outcome would result regardless of the reasons for the act in question then section 18 does not apply to that act." Therefore, I am satisfied in this case that the applicant did not have an entitlement to a statement of reasons under section 18 of the FOI Act, on the basis that she did not have a material interest in the act in question within the meaning of sections 18(5) and 18(6) of the Act. I find accordingly.

In its decision letter in relation to Case 140091, the Board went on to state that, even if it had been the case that the applicant was entitled to a statement of reasons in relation to the solicitor's "declaration", the reasons furnished to her by way of letter dated 5 February 2013 were adequate. The solicitor had stated that he returned papers to the applicant, because he had "a conflict of interest in dealing with applications against the Board". In my view, this would be an adequate reason for the "act" for the purposes of section 18(1)(a). The solicitor went on to state the material issues of fact grounding this finding as being that, "[the solicitor is] a member of the Board's Senior Management Team", and this role may involve a discussion of "key management issues which sometimes include actions against the Board". Again, although it is not strictly necessary for me to make any findings in relation to these matters, given that I have already found that section 18 does not apply in this instance, I am of the view that this statement of material issues of fact would also be sufficient for the purposes of section 18(1)(b) of the FOI Act.

Case 130309 concerns the applicant's request for reasons as to why "a change of solicitor is not warranted in the circumstances" of her case. The Board responded to this request by reference to a letter sent to the applicant on 19 September 2013, which was stated to adequately set out the reasons for the decision. In this case, I am again of the view that the benefit in question is the provision of a solicitor by the Board to deal with the applicant's application for legal aid, and that the refusal to assign a different solicitor did not affect that benefit. I am therefore satisfied that the applicant did not have a material interest in the act in question within the meaning of sections 18(5) and 18(6) of the FOI Act, and find that the applicant thus had no entitlement to a statement of reasons under section 18 of the Act in this case.

As previously stated, the Board had responded to the applicant's request by reference to a letter to her from an officer of the Board dated 19 September 2013. The Board held that the latter correspondence contained an adequate statement of reasons. The letter stated that the applicant's request for a change of solicitor, "had been refused on the grounds that a change of solicitor is not warranted in the circumstances as there is no conflict of interest in [the solicitor] continuing to handle your case". In my view, this would be an adequate reason for the "act" for the purposes of section 18(1)(a). The letter furthermore set out that, "[the solicitor] attends the Senior Management meetings as Project Sponsor of [a particular project] and does not have any role in defending actions against the Board." I am of the view that this would constitute a sufficient statement of material issues of fact for the purposes of section 18(1)(b) of the FOI Act. Notwithstanding my finding that section 18 of the FOI Act does not apply to this application, I am of the view that, if the applicant had been entitled to a statement of reasons under section 18, the reasons furnished would be adequate.

In these cases, therefore, I am of the view that the applicant did not have a material interest in the matters in question, within the meaning of sections 18(5) and 18(6) of the FOI Act. In both cases, the applicant's applications related to administrative steps which were ancillary to the substantive benefit in question, being the processing and consideration of her applications for legal aid. Section 18 of the FOI Act does not entitle her to a statement of reasons in relation to each and every administrative step taken by the Board. In order to establish her entitlement to a statement of reasons under section 18 of the FOI Act, the applicant must demonstrate that the particular act in question had a bearing on the outcome of whether she received or did not receive a benefit or suffered a loss or a penalty or other disadvantage. In both of these cases, the applicant has failed to do so. Furthermore, in both instances, it seems to me that adequate statements of reasons were furnished to the applicant, notwithstanding the fact that she had no entitlement under section 18 of the FOI Act to such statements.

Case 140138
In this case, the applicant sought reasons for the "decision not to reply to [her] letter and enclosed queries dated 7th. January, 2014". The applicant's letter dated 7 January 2014 contained queries as to why the Board had not updated and published its "Section 16 Manual" relating to the FOI Act, its data protection policy, and matters relating to the Board's appeal processes. The Board responded to this request stating that the "non-reply to your letter does not constitute an act within the terms of the FOI Acts".

In her submissions, the applicant argues that the failure to reply to her letter, "denied a benefit to [her] concerning the making of appeals in accordance with fair procedures". The applicant submits that she has tried to raise "systems failures" with the staff of the Board, that conflicts of interest may arise, that the failure to publish this information has caused her to be in default of statutory time limits and that the failure to reply to her "may have been deliberate". It seems to me that the matters cited relate to the purported failure to publish the materials in question, rather than to the failure to reply to her letter. The applicant has not made the case that the very act of replying to her letter would confer a benefit on her. This is the "act" referred to by the applicant in her request. I am satisfied that the "decision" not to reply the applicant's letter did not of itself confer any benefit upon the applicant, or deprive her of any benefit, as defined in section 18(6) of the FOI Act. I am therefore of the view that the applicant did not have a material interest in this matter, within the meaning of section 18(6) of the FOI Act, and the Board was thus justified in its refusal to provide a statement of reasons in this case. I find accordingly.

I note that the Board also stated in its decision that the applicant had no material interest in the matters referred to in her letter of 7 January 2014, on the basis that the purported failure to address these matters, "does not withhold from [her] a benefit that is not withheld from any other applicant to the Board or, indeed, the public at large". Nevertheless, the Board's internal reviewer furnished the applicant with information, including extracts from the Board's Circular on Legal Services, so as to assist her in relation to the making of appeals.

In her application, the applicant stated that, owing to the alleged failure to update and publish the materials in question, "[a]s a client of the Legal Aid Board, [she is] consequently unable to ascertain exact detail of procedures". She argued that this established her material interest in relation to the matters contained in her letter. However, it is also clear from this submission, that, taking the applicant's case at its height, her entitlement to a statement of reasons arises out of her membership of a class of persons, i.e. clients of the Board. Having considered all the circumstances of this case, I am of the view that this is a class of persons which is of significant size, and that, insofar as any benefit was withheld from the applicant by reason of the matters complained of in her letter, such benefit was also withheld from other members of that class of people. Therefore, having regard to sections 18(5) and 18(6) of the FOI Act, and insofar as it is relevant, I am also of the view that the applicant does not have a material interest in the matters set out in her letter of 7 January 2014.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decisions of the Board in Cases 130309 and 140091 so as to reflect that the applicant's applications are refused on the basis that the she had no material interest in the acts in question, within the meaning of sections 18(5) and 18(6) of the FOI Act, and affirm the decision of Board in Case 140138.

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. Such an 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.

Stephen Rafferty
Senior Investigator