Whether AIT complied with the provisions of section 10 of the FOI Act in responding to the applicant's request for statements of reasons relating to his interactions with AIT relevant to his role as a lecturer within AIT

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made three requests on three separate dates in 2016 to AIT under section 10 of the FOI Act for statements of reasons for a variety of matters. In total, he identified 28 separate matters relating to his interactions with AIT relevant to his role as a lecturer within AIT, for which he sought statements of reasons.

In its original decisions, AIT provided a response on each of the 28 points, providing reasons or an explanation for many of the matters identified. Statements were refused in respect of some matters under section 15(1)(i) on the basis that the records were already available to the applicant while others were refused on the ground that the decision for which a statement of reasons was sought was not an act of AIT in which the applicant would have had a material interest. 

The applicant sought an internal review of those decisions on all points and the internal review decisions of AIT affirmed its original decisions. The applicant sought a review by this Office of AIT's decisions on 2 November 2016.   

Given the similarities arising in the three applications for review, I have decided to conclude all three by way of a single binding decision. In conducting the reviews, I have had regard to the correspondence between the applicant and AIT in connection with his requests. I have also had regard to the correspondence between this Office and both the applicant and AIT on the matter.

Scope of Review

This review is concerned solely with the question of whether AIT has complied with the requirements of section 10 in respect of the applicant's requests.

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, the equivalent provision of the FOI Acts 1997 & 2003 (Section 18). While not identical, section 10 is quite similar to that equivalent provision. Insofar as it applies to this review, I am satisfied that the approach previously adopted remains relevant to my consideration of section 10 of the Act of 2014 including, in particular, the following principles:

• There are many acts/decisions taken by FOI bodies where section 10 has no relevance. 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 body. There will be many instances where a number of secondary actions/decision 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. However, 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 the public 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. What section 10 requires is that the head provide a statement of reasons which adequately explains why the body acted as it did.
• Taking section 10 as a whole, 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 10 does not apply to that act.
• The appropriateness, or otherwise, of administrative actions taken by FOI bodies is not relevant for the purposes of section 10. Indeed, the remit of this Office does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought under section 10. Thus, even if the act or decision in question was somehow flawed, that would not be something that this Office could require the FOI body to rectify. 

In cases where the FOI body has refused to provide a statement of reasons, the Commissioner's review is concerned with whether the FOI body was entitled to refuse to provide the statement of reasons.  In cases where the applicant is not satisfied with statement of reasons provided, the Commissioner's role is confined to deciding whether the FOI body has complied with the requirements of section 10 of the FOI Act i.e. is the statement given adequate? 

The applicant appears to be of the view that he can avail of the rights afforded by section 10 to require AIT to answer any queries he has concerning the manner in which AIT engaged with him and to explain each act, regardless of the consequences of each act. As is clear from the principles I have described above, this is not the case. Having examined each of the 28 matters identified by the applicant, I am satisfied that the vast majority are not "acts" or "decisions" of AIT that can reasonably be described as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. Many of the "acts" are simply the applicant's interpretation of his engagements with his colleagues and in some cases AIT has disputed those interpretations. These are not acts for which AIT is required to give reasons.

For example, the applicant sought a statement of reasons for the decision made by a colleague to defame his character and cyber-bully him in an email. AIT found that there was no evidence to support such an allegation, a finding with which the applicant agreed in his request for internal review. In its decision of 1 April 2016, AIT described the email as having issued in the context of work being undertaken for a programmatic review which it is required to undertake every five years. It stated that the email was commenting on the draft syllabus prepared by the applicant for a particular programme. In my view, the applicant did not identify an act of AIT in this case. Even if he did, I am satisfied that he does not have a material interest in the act as it did not confer on or withhold from him a benefit.

Many of the other matters identified are not acts in which the applicant has a material interest as they did not confer on, or withhold from, him a benefit. Let me take a specific example for the benefit of the applicant:

The applicant sought a statement of reasons for the decision of a named official of AIT to advise him that he would be subject to disciplinary action in an email of 4 September 2015. He made three further applications for reasons for the decisions of three other officials of AIT to support that decision. In the email in question, the relevant official informed the applicant that if he refused to deliver his timetable the following week as instructed, he would be referred to the HR Department, and that he (the official) was informed that the provisions of AIT's disciplinary policy would apply in such an event.

If disciplinary action had been taken, the applicant would have been entitled to a statement of reasons as to why the substantive act of disciplinary action was taken, as he would clearly have been affected by that act. However, it seems to me that the reason why the official in question advised the applicant that he would be subject to disciplinary action has no bearing on the outcome of whether the applicant received or did not receive a benefit or suffered a loss or a penalty or other disadvantage. In other words, he does not have a material interest in a matter affected by the act identified.

Overall, I find that the applicant's applications for statements of reasons are based on an incorrect interpretation of the rights afforded by section 10. The section does not require an FOI body to explain or justify each and every step in its engagements with an individual. Rather it is aimed at ensuring that the individual can understand, without undue difficulty, why the FOI body took a particular action or made a particular decision that affected the individual in circumstances where the consequence or effect of the act may be to confer on or withhold from the individual a benefit.

For the sake of completeness, I should add that one of the 28 matters identified by the applicant, taken in isolation, may comprise a valid "act" for which AIT is required to provide a statement of reasons, namely the decision of AIT to refuse an overtime claim he submitted. However, I note that AIT specifically explained why it did so in emails to the applicant dated 22 October 2015 and 13 November 2015. I fail to see how the applicant could reasonably argue that he required a statement of reasons to allow him to understand why AIT took that decision.

Having carefully considered the matter, I find that AIT was not required, under the provisions of section 10 of the FOI Act, to provide the statements of reasons sought.  

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of AIT. I find that the AIT was not required, under section 10, to provide the statements of reasons sought.

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. 

Stephen Rafferty
Senior Investigator