Whether the information supplied by the Department to the applicant as to why his appeal against the decision of the Department not to shortlist him for inclusion on the 2018 election observation roster was unsuccessful was sufficient for the purposes of section 10 of the FOI Act

30 January 2020

Background

The Department maintains a roster of election observers that may participate in international election observation missions. In 2018, the Department sought volunteers for a new five year roster. Volunteers were required to submit an application form setting out details of various essential requirements. An appeals process was provided for.

The Department stated that on 14 December 2019, the applicant was informed of his score and that he had not been shortlisted to the 2018 election observation roster. It said he was informed of how the appeals process would be run, and of the requirements for an appeal. The applicant subsequently availed of the appeals process. His appeal was unsuccessful.

On 14 May 2019, the applicant applied to the Department for a statement of reasons as to why his  appeal against the decision to appointment him to the Irish election observation roster was rejected. On 10 June 2019, the Department issued a decision in which it stated that the applicant had already been provided with the reasons as to why it did not appoint him to the roster either on his first application or on his appeal and it referred to previous documentation that had been given to him in relation to his application and appeal.

The applicant sought an internal review of that decision on 11 June 2019. On 1 July 2019, the Department issued its internal review decision in which it stated that it was affirming the original decision to refuse to provide the statement of reasons sought. On 12 August 2019, the applicant sought a review by this Office of the Department-�s decision.

During the course of the review, and following engagement with this Office, the Department stated that while it still maintains its position that the applicant is not entitled to a statement of reasons under section 10 of the Act, it would provide what it termed as -�supplementary information-� to the applicant in order to bring the matter to a close. It did so by email dated 4 November 2019.

Following receipt of that information, the applicant made a further submission in which he indicated that he was not satisfied with the Department-�s response. Accordingly, I have 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 Department as set out above and to the communications between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Department has complied with the requirements of section 10 of the FOI Act in respect of the application for a statement of reasons as to why the applicant-�s appeal against the decision of the Department not to shortlist him for the 2018 election observation roster was unsuccessful.

Preliminary Matters

During the course of the review, the applicant has expressed various concerns about the fairness of the review process. For example, he expressed concerns of potential bias arising from the involvement in the review of the same staff members who were involved in previous reviews of his. While I do not propose to engage with those arguments in this decision, I can confirm that I have considered the applicant-�s arguments and do not accept them. I am satisfied that the applicant was given a reasonable opportunity to comment on all material issues arising and that he has, indeed, done so.

A review by this Office is considered to be de novo, which means that it is based on the circumstances and law as they pertain at the time of the decision. As such, I consider it appropriate to have regard to the supplementary information issued by the Department during the course of the review to determine if the Department has, at this stage, complied with the requirements of section 10.

Analysis and Findings

Entitlement to a Statement of Reasons

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.

Section 10(13) defines -�benefit-� 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 to the person, and (c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

The -�act-� for which a statement of reasons was sought in this case was the decision of the Department not to uphold the applicant-�s appeal against its decision not to appoint him to the 2018 election observation roster.

In a submission to this Office, the Department argued it was not required to provide the statement for a number of reasons. It said the applicant had not identified a material interest in a matter affected by the act or established that the act confers or withholds a benefit on him. It did acknowledge that as those shortlisted to the roster who complete security vetting have the opportunity to apply for overseas missions with the EU and the OSCE, one could consider that there is an advantage and therefore a benefit under the Act. However, it said any supposed benefit denied to him was also withheld from every other applicant who was not shortlisted to the roster, whether or not they sought an appeal. It said in total 177 persons were not successful, a number which could be viewed to be -�a class of persons of significant size-� as per section 10 (13) of the Act. It said, in addition, -�persons in general-� were not invited to attend the training and were consequently denied the same benefit as that which was potentially denied to the applicant.

The act of the Department at issue in this case was the decision taken by the appeals panel on the applicant-�s appeal of the decision not to shortlist him for inclusion on the election observation roster. In my view, this was a decision that uniquely affected the applicant and had consequences for him, i.e. he was not shortlisted for inclusion on the election observation roster. As such, I am satisfied that he had a material interest in a matter affected by the act in question. Accordingly, I find that the applicant was entitled to the statement of reasons sought under section 10.

Has the Department provided an adequate statement of reasons?

In its original decision of 10 June 2019, the Department said the applicant was previously informed of the appeals process concerning the decision not to shortlist him for inclusion on the roster, including the following:

• The two permitted grounds for an appeal are evidence of a procedural irregularity or specified grounds that the marking decision was based on a misinterpretation of the information provided by the candidate as part of the selection process,
• The Appeals Panel will consider the information contained in the Volunteer Booklet and application form, and the facts/grounds stated in the candidate-�s email only.

The Department said the applicant submitted an email on 31 December 2018 with three attachments, namely his application form, his scoresheet, a five page document comprising his appeal submission. It said the Appeals Panel submitted the original assessment to a thorough review, following which it decided that -�there is not sufficient justification for the candidate to be shortlisted for membership of the international election observation roster-�. It said the decision and rationale was communicated to the applicant on 4 March 2019 following the Appeals Panel final meeting  and that the applicant was also provided with the Panel-�s Terms of Reference for the appeals process. It said in summary that the Panel reviewed the relevant documents and did not come to a different conclusion on the applicant-�s score than the original assessment. It said his score did not reach the minimum passing score, being the cut-off score that separated the 200 highest scoring candidates from the rest.

As I have outlined above, the Department subsequently provided the applicant with additional supplementary information during the course of the review. I should say at this stage that much of the supplementary information provided is concerned with the Department-�s view that it cannot provided a more detailed statement of reasons for the Appeals Panel-�s decision as it is not in possession of more detailed information and in light of the independence of the Panel.

I do not accept that the Department can appropriately refuse to comply with the requirements of section 10 simply because the Appeals Panel has not recorded and maintained detailed reasons. On the other hand, I do not consider it necessary for the Department to have to speculate as to the precise thoughts of the Appeals Panel for the purpose of fulfilling its section 10 obligations. As this Office has outlined in previous decisions (including in Case 99424 which involved the same applicant), where a public body has a particular practice which it follows in taking decisions in a particular set of circumstances and where that practice has been followed then, normally, there should be no further need to enquire into the thought processes of the decision maker

In the supplementary information provided, the Department said it was not the role of the Appeals Panel to re-mark applications but to review individual cases and decide whether there was sufficient justification for any individual appellant(s) to be added to the roster shortlist. It said the Panel did this by reviewing the individual applications and score sheets and any information provided by appellants in their appeals request that was within the terms of reference of the Panel.

The Department added that the Appeals Panel was provided with anonymised copies of the applications and score sheets of the ten highest scoring applicants, the ten lowest scoring applicants, and every application which scored within a range of marks either side of the cut-off score. It said the Panel reviewed each case considering any issues raised by appellants that were within its terms of reference and whether any application under review was of at least equal quality to those which achieved the cut-off score. It said on the basis of the Appeals Panel-�s determinations, two appellants were shortlisted to the roster.

The Department said the appeals panel concluded that there was not sufficient justification for the applicant to be shortlisted to the roster.  It said the quota of available roster places was met by higher scoring candidates and this is why he was not shortlisted to the Roster, either on his first application or on appeal. It went on to say that one could deduce that, having reviewed his application and any issues raised in his appeal request, the Appeals Panel determined that his application was not of equal quality to those which scored the cut-off score and that there was therefore no basis to add him to the roster shortlist.

In his correspondence with the Department and with this Office, the applicant raised a number of specific concerns, including concerns in relation to the manner in which the appeal was conducted. As the applicant is aware, this Office has no role in examining the appropriateness or otherwise of the decision taken or the manner in which it was arrived at. Our remit extends only to examining whether an adequate statement of reasons has been provided. If a public body adequately explains why it acted as it did, that is the end of the matter in terms of the obligations on the body under section 10.

It is also important to note that section 10 is not an alternative appeal mechanism. The purpose of section 10 is to ensure that such reasons for an act as may be identified are conveyed to the applicant and, where reasons cannot be identified, it is not the purpose of section 10 to require the creation, after the event, of such reasons.

On the matter of the information provided by the Department to date, the applicant argued that no statement of reasons has been provided and that the information furnished falls significantly short of the requirements of the Act and of common law. He argued that he received a pro forma notification that his appeal was rejected which did not engage with any of the appeals grounds in his appeal. He argued that the Department should be directed to provide a statement of reasons.

This Office considers that a statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. The statement should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did. However, a statement does not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision. It is noteworthy that there are practical limits to the degree of explanation which can be given as to why a particular subjective judgement was

Made. Furthermore, provided the statement is adequate and clear, there is no requirement that it be in a particular form.

Having considered the detail of the information provided by the Department in its original decision and subsequently during the course of the review, I am satisfied that the Department has provided an adequate explanation of why the applicant-�s appeal was unsuccessful.

It provided details of the appeals process and details of the documents considered by the Appeals Panel. It said the Appeals Panel reviewed each case considering any issues raised by appellants that were within its terms of reference and whether any application under review was of at least equal quality to those that achieved the cut-off score. It explained that the Panel reviewed the relevant documents and did not come to a different conclusion on the applicant-�s score than the original assessment. It said the applicant-�s score did not reach the minimum passing score, being the cut-off score that separated the 200 highest scoring candidates from the rest. It said it could be deduced that the Appeals Panel determined that his application was not of equal quality to those that scored the cut-off score and that there was therefore no basis to add him to the roster shortlist.

In the circumstances, I find that the Department has complied with the requirements of section 10 of the FOI Act in this case.

Decision

Having carried out a review under section 22 (2) of the FOI Act, I hereby affirm the decision of the Department in this case, I find that the Department has provided an adequate statement of reasons as to why the applicant-�s appeal against the decision of the Department not to shortlist him for the 2018 election observation roster was unsuccessful.

Right of Appeal

Section 24 of the FOI Act sets out the 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