Whether the NCSE was justified in its decision to refuse to provide statements of reasons for various matters relating to the applicant's interactions with the NCSE on the ground that its decisions were comprehensively explained in records already provided

5 November 2018

Background

On 14 June 2017 the applicant submitted a multi-part FOI request to the NCSE which included an application under section 10 of the FOI Act for a statement of reasons in connection with certain matters relating to his interactions with the NCSE. Other aspects of his request will be addressed in separate decisions.

The applicant indicated at the outset that his mother was acting on his behalf. The applicant's mother represented the applicant in all subsequent correspondence in relation to the request. At an early stage in this review, she provided this Office with a letter from the applicant authorising her to act on his behalf. Accordingly all references to correspondence with the applicant should be taken to include correspondence with his mother on the basis that she was corresponding on his behalf.

On 21 November 2017 the NCSE issued a decision wherein it refused to provide a statement of reasons on the ground that reasons for decisions taken to provide the applicant with additional educational supports under a specified category were comprehensively explained in records already provided. The applicant sought an internal review of that decision. On 19 December 2017, the NCSE issued its internal review decision wherein it affirmed the original decision. On 30 April 2018, the applicant sought a review by this Office of the decision of the NCSE. 

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the NCSE's correspondence with the applicant as outlined above and to communications between this Office and both the NCSE and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the NCSE was justified in its decision to refuse to provide the statements of reasons sought on the ground that its decisions were comprehensively explained in records already provided.

Preliminary Matter

During the course of the review the applicant raised many issues that are not capable of consideration by this Office. As the applicant has already been informed, this Office has no remit to examine or investigate complaints about the administrative actions of the NCSE or to act as an alternative dispute resolution mechanism. The remit of this Office is confined to establishing whether decisions taken by FOI bodies on requests or applications made under the FOI Act were in accordance with the provisions of the Act.

Analysis and Findings

Section 10
Section 10(1) 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. Subsection (5) of section 10 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."

Under subsection (13), benefit is defined as including any advantage to the person, or the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

This Office considers 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 an FOI body, i.e. the applicant bears the burden of showing that he or she has a material interest in the matter. 

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.

Taking section 10 as a whole, this Office considers 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 10 does not apply to that act.

The applicant sought reasons for the following matters: 

"please explain lack of information imparted with regard to my Educational Entitlements, why SENO's [Special Educational Needs Organisers] never made their existence known, why they engaged covertly with Third Parties, particularly with CAMHS [Child and Adolescent Mental Health Services] sharing information without family's knowledge and or consent, why they refused to impart information to my Mother, why Naas SENO gave wrong and or harmful advice to Mother, eg. 'forget about the Resource Hours Teaching' and to Third Parties".   

As set out above, an application under section 10 should identify a specific act of the FOI body for which a statement of reasons is required. Having examined each of the matters identified by the applicant, I am satisfied that they are not "acts" or "decisions" of the NCSE 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" listed are simply the applicant's interpretation of his engagements with the NCSE and in particular contain specific assertions in relation to matters which may or may not have happened. Indeed I would expect that the NCSE would dispute such assertions and the inferences which could be drawn from them. 

It seems to me that the application for a statements of reasons is based on a misunderstanding 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. The applicant appears to be of the view that he can avail of the rights afforded by section 10 to require the NCSE to answer specific queries he has concerning the manner in which the NCSE 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. 

In the circumstances, I find that the applicant has not shown that he has a material interest in a matter affected by the matters identified and that he is not entitled to a statement of reasons for those matters. I therefore find that the NCSE was justified in finding that it was not required, under the provisions of section 10 of the FOI Act, to provide statements of reasons for the various matters in question.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the NCSE to refuse to provide a statement of reasons for various matters relating to the applicant's interactions with the NCSE.

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