Whether TCD was justified, pursuant to section 10(12) of the Act, in refusing to provide statements of reasons for a number of alleged acts that occurred in 2005/2006 on the ground that the application was not made within 12 months after the date on which the applicant became aware of the acts

10 March 2021

Background

This case has its background in a previous review wherein I annulled the decision of TCD to refuse an application under section 10 of the FO Act for statements of reasons for various acts on the ground that TCD had wrongly treated the application as a request for relevant records (case OIC-99005 refers). I directed TCD to carry out a fresh decision making process on the application in accordance with the provision of the FOI Act.

The applicant was a student in TCD in 2005. He was disciplined for an alleged violation of college rules and policies. He subsequently left TCD in 2006. On 2 June 2020, he submitted an application under section 10 of the Act for statements of reasons in respect of five specific acts/decisions that occurred in and around 2005/2006 concerning him. Following its fresh consideration of the application, TCD issued a decision on 5 January 2021 wherein it refused to grant the statement of reasons under section 10(12) of the Act, i.e. that the request was made more than 12 months after the applicant became aware of the act. On 15 January 2021, the applicant sought an internal review of that decision. He attached a lengthy document setting out details of circumstances which led to him leaving TCD. Among other things, he set out at length personal difficulties he encountered in the ensuing years which he considers to be connected to TCD’s actions. He argued that TCD should exercise its discretion, under section 10(12)(b), to accept the late application.

On 5 February 2021, TCD affirmed its original decision. It said the application was made 15 years after the applicant became aware of the acts. It said it considered section 10(12)(b) but that the particular circumstances of the request did not merit TCD granting the request. On 8 February 2021, the applicant sought a review by this Office of TCD’s decision.

During the course of this review, both the applicant and TCD provided submissions to this Office.  I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to correspondence between TCD and the applicant as outlined above and to correspondence between this Office and both TCD and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether TCD was justified, pursuant to section 10(12)(a) of the FOI Act, in refusing the application for a statement of reasons relating to five specific acts that occurred in 2005/2006 concerning the applicant.

Preliminary Matter

Before I deal with the substantive issue arising, I should explain for the benefit of the applicant that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, we cannot examine the appropriateness, or otherwise, of acts or decisions taken by public bodies for which statements of reasons are sought.

Analysis and Findings

Section 10 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. Paragraph (a) of subsection 12 provides that an application under section 10 must be made within 12 months after the date on which the person who is affected by the act becomes aware of it. Paragraph (b) of subsection 12 provides that, notwithstanding paragraph (a), where the particular circumstances warrant it, the public body may accept an application outside the time limit specified in that paragraph.

In its submissions to this Office, TCD explained that during the relevant period (in 2005/06), the applicant made 22 FOI requests, the content of which is directly related to the current application under review. It said that a number of staff concerned have since left the College. It said that in accordance with its records management policy and GDPR requirements a large number of records related to the request would have been destroyed. It argued that section 10(12)(a) ensures that requests are made for reasons for acts in a timely manner so that the FOI body can provide an accurate summary of the reason for certain acts. It said that it is difficult for FOI bodies to accurately provide a statement of reasons where a long period of time has passed, where records are no longer retained or key staff involved in a certain decision making process are no longer employed by the body.

The alleged acts in question occurred in 2005/2006. By the nature of the events described by the applicant in correspondence with TCD and provided to this Office, it is clear that the applicant was aware of those acts as they occurred or shortly thereafter. Indeed, in correspondence with this Office, the applicant did not deny he was aware of the events in 2005/2006. Rather, he is of the opinion that the statements of reasons should be granted considering the effect of the alleged acts.

I do not agree that the applicant’s assertion (that the acts have had an ongoing effect on him) warrant the acceptance of an application that is so far past the time-frame provided for in the FOI Act for making such an application. Having regard to the particular circumstances arising and, in particular, to the fact that the alleged acts occurred 15 years ago, I am satisfied that TCD was justified in refusing to exercise the discretion afforded by section 10(12)(b) to accept a late application in this case. I therefore find that TCD was justified, pursuant to section 10(12)(a), in refusing to provide the statements of reasons sought. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TCD’s decision to refuse, pursuant to section 10(12)(a) of the FOI Act, to provide statements of reasons relating to five specific acts that occurred in 2005/2006 concerning the applicant.

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