Whether the Department was justified in refusing the applicant-�s request under section 10 of the FOI Act for a statement of reasons for various acts the applicant alleged it had made and which had affected him 

8 February 2023

Background

In a request dated 22 February 2022, the applicant sought from the Department-�s Forestry Service, under section 10 of the FOI Act, a statement of reasons for a number of alleged acts that he claimed had adversely affected him and in respect of which he had a material interest. The request referred to specific forestry licence application numbers and ran to 26 alleged acts of the Forestry Service which included, among other things, -�unusual delays-�, -�unusual requests-�, failures to act, -�unusual multiple changes of District Inspectors-�, -�unusual referrals-� and -�unusually long and convoluted-� approval processes. The details of the acts, or alleged acts, of the Department in respect of which the applicant sought a statement of reasons are set out below.

As the Department did not issue a decision on the applicant-�s request within the statutory timeframe, it was deemed to have refused the request. On 16 April 2022, the applicant sought an internal review of the Department-�s deemed refusal of his request. Although the Department issued an internal review decision on 17 May 2022, again this was outside the statutory timeline and as such it had been deemed to have refused the applicant-�s request for internal review. On 11 May 2022 (in other words, before the Department issued its internal review decision) the applicant applied to this Office for a review of the Department-�s deemed refusal of his application.

In its submissions to this Office, the Department relied on section 10(12) of the FOI Act, the details of which are set out below. As the applicant had not had a chance to consider this provision of the FOI Act in the context of his request, we wrote to him to put him on notice of the Department-�s reliance on same, and to invite him to make any further submissions that he wished on the matter. The applicant subsequently made submissions on the applicability of section 10(12), and I have considered these in full.

In subsequent correspondence with this Office, the Department also relied on section 10(5) of the FOI Act, the details of which are set out below, in respect of certain elements of the applicant-�s request. As the applicant had, again, not had a chance to consider section 10(5) in the context of his request, we wrote to him to bring the Department-�s reliance on same to his attention, and to invite him to make any further submissions that he wished. The applicant subsequently made further submissions on the applicability of section 10(5), and I have also fully considered these.

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 all correspondence exchanged by the parties, the applicant-�s comments in his application for review and the submissions made by both parties. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

As outlined above, the alleged acts of the Department in respect of which the applicant sought a statement of reasons were in relation to a number of forestry licence applications. The applicant provided the relevant application reference numbers and, for clarity, in this decision I shall continue to use those reference numbers.

Scope of Review

This review is solely concerned with whether the Department was justified in its deemed refusal to provide the statement of reasons sought by the applicant under section 10 of the FOI Act.

Preliminary Matters

As outlined above, the Department missed the statutory deadlines for responding to both the applicant-�s initial FOI request and his request for an internal review. I wish to take this opportunity to remind the Department of its obligations under the FOI Act to respond to requests within the timelines set out in the legislation.

In addition, before I deal with the substantive issues 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 the acts or decisions taken by public bodies for which the statements of reasons are sought.

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. Taking section 10 as a whole, this Office considers that the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) 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.

It is important to note, and is of significance to this case, that the requirement to provide a statement of reasons does not apply to every action of an FOI body. The view of this Office is that 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 FOI body and its officials.

Accordingly, in order for a right to a statement of reasons to arise under section 10 of the FOI Act, this Office must first be satisfied that the action complained of is an -�act-� (that is, the exercise of, or refusal to exercise, a power or function) for the purposes of that section.

Section 10 does not provide a mechanism for seeking answers to questions about what actions an FOI body did or did not take.

The specific actions of the Department in respect of which the applicant sought a statement of reasons under section 10 of the FOI Act are as follows, in the context of the application reference numbers set out below:

• CN88289:the applicant sought a statement of reasons for what he described as the Department-�s -�unusual delay in referring [the application] to the appropriate  bodies-� (my understanding is that the referral in question is the practice by the Department of contacting relevant third party organisations to seek their observations or recommendations in respect of forestry licence applications)
• CN88472:the applicant sought a statement of reasons for what he described as the Department-�s -�unusual referral-� of the application to a third party organisation, and its -�unusual request-� for the views of a soil scientist
• NWS1109:the applicant sought a statement of reasons for -�
  • an alleged failure to act (by which I understand the applicant means a failure to process the case in a timely fashion) on the part of the Forestry Service-�s inspectors
  • what he described as the -�unusual multiple changes of District Inspectors-�
  • what he described as the -�unusually long delay-� in making relevant referrals in the context of the application
  • particular statements made by the Forestry Service in relation to a specified referral of the application
  • what he described as the -�costs issue-� in relation to the application, in circumstances where he stated costs for similar applications had been approved
  • an alleged failure to act on official complaint made to the senior  inspector

• NWS1149:the applicant sought a statement of reasons for -�
  • what he described as the -�very unusual processing and timeline-� in respect of this forestry licence application, with reference to two specified statements made by the Forestry Division in relation to the application
  • what he described as a -�failure to act-� on the part of a named Forestry Division official
  • what he  described as the -�refusal of [funding for] 95.5% of estimated costs-� in relation to the application
  • the alleged referral of the application, and an associated tree felling application, to two different inspectors
• CN81642:  the applicant sought a statement of reasons for -�
  • what he characterised as a highly unusual request made by the Forestry Division for the provision of a particular statement in support of the application
  • an alleged request for additional maps in support of the application, which the applicant also characterised as highly unusual

• TFL00459420:the applicant sought a statement of reasons for what he described as the -�unusual-�further information request-�
• NWS1043 and  NWS1094:the applicant sought a statement of reasons for the alleged omission of these applications from a list prepared by a named Forestry Division official
• CN65844:the applicant sought a statement of reasons for -�
  • what he described as the refusal of the Forestry Service -�to consider EU Law concerning -�force majeure-�-�
  • an alleged failure to act on the part of the Forestry Service
  • the Forestry Service-�s decision that further specified steps needed to be taken by the applicant in order to progress the application, while no such further steps where required in respect of other similar applications

• TFL00257718:the applicant sought a statement of reasons for -�
  • what he described as the -�unusual number of further information requests and ecologist input-�made over 8 months-�
  • a specified site visit by Forestry Division officials
  • a specified statement made by the Forestry Division in relation to the application
• CN48440:the applicant sought a statement of reasons for the Forestry Division-�s requirement for the erection of certain specified fencing on the site in order to progress the application
• TFL00456820:the applicant sought a statement of reasons for what he described as -�unusual referrals almost ten months after submission-� of the application
• NWS1104:the applicant sought a statement of reasons for what he described as the -�unusually long and convoluted approval process-� of the application.

It is my view that, in this case, the relevant -�function or power-�, for the purposes of section 10 of the FOI Act, is the approval or refusal of forestry licence applications by the Department-�s Forestry Division. I do not consider that section 10 requires the Department, upon request, to provide a statement of reasons for every action taken in the course of deciding such applications that might inform their approval or refusal.

It should be noted that, in correspondence with this Office, the Department accepted that the applicant had sought a statement of reasons for an act within the meaning of section 10 of the FOI Act. However, having reviewed the 26 alleged actions of the Department outlined above in respect of which the applicant has requested a statement of reasons, I am forced to disagree. I am not satisfied that any of the actions complained of constitute an -�act-� of the Department-�s Forestry Division for the purposes of section 10. That is to say, the impugned actions of the Forestry Division seem to me to be steps and/or decisions (or alleged steps and/or decisions), taken as part of the decision-making process leading to its exercise of a relevant function of power (the approval or refusal of forestry licence applications), rather than that function or power itself. To illustrate the point, I do not accept that (to take two examples) either -�an unusual delay-� or -�a highly unusual request-� in the processing of forestry licence applications can be said to be an -�act-� of the Department in respect of which the applicant is entitled to a statement of reasons under section 10.  

It seems clear that the applicant believes that he has been treated differently from other applicants in respect of forestry licence applications he has made, and that he believes he is the victim of maladministration. However, analysis of why or whether maladministration may have occurred lies in the province of the Ombudsman, and not of this Office.  In respect of the above forestry licence applications, I find that the applicant has not identified in the first instance an -�act-� by the Department for the purposes of section 10 (the exercise of, or refusal to exercise, a function or power) such as would entitle him to a statement of reasons under that provision of the FOI Act.

In making this finding, I do not wish to minimise the obligations on the Department to provide accurate advice and information to applicants about the schemes it administers. However, any failure by the Department in this matter cannot be remedied by section 10 of the FOI Act. That section is concerned with the giving of reasons for acts of a public body, (meaning its exercise of, or refusal to exercise, a power or function), rather than requiring a public body to justify its actions.

In circumstances where I have found that none of the actions specified in the applicant-�s FOI request constitute an -�act-� for the purposes of section 10, I am not required to examine the specific arguments made by the Department under section 10(5) and 10(12) of the FOI Act. Furthermore, in circumstances where the actions specified do not engage section 10, I am not required to consider the questions of whether the applicant has established that he has been affected by the actions and that he has a material interest in the matter.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the deemed refusal of the Department to provide a statement of reasons for the actions, or alleged actions, specified by the applicant in his FOI request. I find that those actions are not acts of the Department within the meaning of section 10, and as such that no entitlement exists to a statement of reasons for those actions.

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.

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Neill Dougan
Investigator