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Purpose

The Freedom of Information Act 1997, section 18, provides a right for a person who is affected by an action of a public body to be given a statement of reasons for the action.

The normal process whereby students, staff, suppliers or others affected by decisions of the University seek and obtain explanations for these decisions continues as heretofore. The intention of this note is to provide advice in relation to those instances where the Freedom of Information Act is used to obtain such explanations.

Who may request an explanation for an action of the University

Section 18 applies to a person who is affected by an act of the University and has a material interest in a matter affected by the act or to which it relates. The term `material interest' indicates that the person is directly affected by a decision or act of a public body, but that people in general, or a large class of people, are not similarly affected. The FOI Act defines the term:

`a person has a material interest in a matter affected by an act of a public body ... 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'.

Essentially, this section of the FOI Act concerns decisions giving personal advantage or disadvantage and relates to the person affected. It is the person concerned who has the material interest that may make a request under this section.

General examples of possible requesters are those affected by the selection processes of the University, for example: staff selection, either recruitment or promotion, at all stages in the process, including short-listing and interviewing; student selection; tender selection. Particular examples could be a request from someone who had not been called to a staff selection interview, or a mature applicant who was not accepted, or a postgraduate student who was not permitted to progress to the Ph.D. register.

What may be requested

An affected person may seek a statement in writing of the reasons for a decision (other than a decision under the FOI Act for which there are separate arrangements) and of any findings on any material issues of fact made for the purposes of the act.

What acts of the University are covered

Dublin City University became a prescribed body subject to the terms of the Freedom of Information Act with effect from 1st October, 2001, and it is in respect of decisions made from this date onward that reasons for decisions may have to be provided. The Act does not set any limit in terms of the length of time that may have elapsed between the action of the public body and the making of a request for reasons about that action.

How are such requests made

A written request for reasons for a decision citing the Freedom of Information Act, section 18, from someone affected by the decision and with a material interest constitutes a formal request. In the event that a request is not correctly drafted, or if it would be beneficial to the individual to express his or her request in terms of section 18, the University is under an obligation to assist, or offer to assist, the individual in the preparation of an application under that section.

 

Handling of requests

The statement of reasons must contain, along with the reasons for the decision, any finding on any material issues of fact made for the purposes of the decision. The guiding principle is to adequately explain how the decision was reached.

The contents of a statement of reasons should include:

• Logical explanation of the decision, containing steps linking the facts to the ultimate decision made;
• Criteria relevant to the decision, the weight attached to each criterion and the conclusion reached;
• Elements of policy, guidelines or practice that shaped the justification for the decision;
• Recommendations, reports and results of investigations carried out by qualified experts that were considered in the decision.

Findings on material issues of fact should include:

• Facts applied in making the decision;
• Facts inferred from other facts established by evidence and the process of inference;
• Underlying facts when applying what may appear to be subjective decisions

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In brief, the decision-making process should be adequately documented in a clear, objective manner and all relevant facts and considerations properly recorded. Decisions should be recorded against the stated criteria, citing all relevant evidence. It is very important that such records be created at, or as close as possible, to the time of making the decision.

All Freedom of Information requests including a request for reasons for decisions should be forwarded immediately to the Freedom of Information Office. The deadlines for handling such a request are similar to those for requests for access to records; that is, they must be acknowledged within two weeks of receipt by the University and answered within four weeks. The acknowledgement will be issued by the Freedom of Information Officer and the reply will be issued by the relevant FOI decision-maker. Like other FOI requests, section 18 requests may be the subject of subsequent internal review or review by the Information Commissioner.

Implication for Records Creation

It is vitally important that all decision-making processes are adequately documented in a clear, objective and intelligible manner and that all relevant facts and considerations are properly recorded. In general, the process should be that there is a written policy, procedure and criteria for the decision and that decisions are recorded against the stated criteria citing the relevant evidence. The records should show a rational and consistent sequence. It is important that such records be created as close as possible to the time the decision is made. When creating records, assume that the individual about whom they are being created will ultimately see them. Records that demonstrate decisions should be objective and factual, and in the case of decisions made by committees, should clearly reflect the collective decision of the committee.

Implications for Record Keeping

Since there is no time limit for seeking reasons for decisions, other than the application of the FOI Act to DCU (1.10.2001), it will be necessary to retain sufficient records in order to be able to answer such requests in the future. Requests are more likely to come from those who have been unsuccessful and may be expected to concern any stage in a decision-making process. In this regard, for example, the record of the short-listing of applicants is just as important as that of the final selection.

Implications for Processes & Procedures

From a Freedom of Information perspective the following processes may be examined in light of an FOI request under Section 18:

• formulation and publication of selection criteria;
• application of the selection criteria;
• documenting of the selection process;
• recording of reasons for success or failure.

 

Joe Maxwell

Freedom of Information Officer

Dublin City University