Whether the ITC complied with the provisions of section 10 of the Act in relation to an application for four statements of reasons sought by the applicant concerning his dispute with the ITC

21 December 2020

Background

ON 18 May 2020, the applicant submitted an application to the ITC for a statement of reasons for various matters in connection with an appeal he had pursued following a formal complaint he had made in the academic year 2018/19 and that had been undertaken by the ITC’s Student Academic Resolution Committee. Specifically, he sought reasons for the following:

1. Why he was accused of doing work outside of college by a named ITC staff member which the staff member stated was not allowed,  
2. Why his work was not graded independently by an external examiner for one module for 2018/2019 when he was informed by the Head of Department that it would,
3. Reasons for the decisions taken in a stage 2 report that was prepared by the Head of Faculty and a further stage 3 report that was prepared by the Student Resolution Academic Committee, and
4. Why his application to progress while carrying a module at the end of 2017/2018 was rejected.

As the ITC failed to issue a decision on the application, the applicant sought an internal review of the deemed refusal of his application on 20 June 2020. In its internal review decision, the ITC said no decision was taken by it in respect of part 1 and it provided a brief response in respect of each of the remaining parts. On 27 January 2020, the applicant sought a review by this Office of the ITC’s decision. During the course of the review, ITC provided the applicant with a statement of reasons in respect of part 4 above.

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 the communications between the ITC and the applicant as set out above and to the communications between this Office and both the ITC and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned with the question of whether the ITC was justified in refusing to provide the applicant with a statement of reasons in respect of parts 1 to 3 of his application and whether the statement of reasons it provided during the course of this review in relation to part 4 is adequate for the purposes of section 10 of the Act.

Preliminary Matters

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. 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.

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.

There are many acts or 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.

Part 1

The applicant sought a statement of reasons as to why he was accused by a named ITC staff member of doing work outside of college which was not allowed. I understand this issue was considered as part of the applicant’s complaint to the ITC which was examined through the ITC’s complaint’s and appeals procedures, initially through an informal stage 1 procedure, and subsequently through a formal stage 2 report completed by the Head of Faculty and through Stage 3 where the applicant’s complaint was examined by the ITC’s Student Academic Resolution Committee. The stage 2 report contains the following comment: “It has been formally acknowledged by the staff member that the incident could have been handled better and it was certainly not his intention to upset the student in any way. He has to confirm how all work is completed to ensure fairness to all students. He apologies for any upset caused to the student and wants to move forward positively with the student.”

Having considered the matter, I find that the “act” identified, namely the accusation made, did not involve the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. It seems to me that the substantive act in this case that conferred or withheld a benefit was the assessment of the applicant’s grade, not the accusation made. The reasons why the staff member made the accusation, if that is the case, had no bearing on the outcome of whether the applicant received or did not receive a benefit or suffered a loss or a penalty or other disadvantage. I find that the ITC was not required to provide the applicant with a statement of reasons in relation to part 1 of his application.

Part 2

At part 2, the applicant sought a statement of reasons as to why his work was not graded independently by an external examiner for one module for 2018/2019 when he was informed by the Head of Department that it would.

I note that in its internal review decision, the ITC sad that an external examiner reviewed the module as per request, did consider the grade and confirmed the grade by signature of the examination broadsheet. Regardless, as with part 1, I find that the “act” identified, did not involve the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. It seems to me that the reasons why the ITC might not have done what the Head of Department said it would do had no bearing on the outcome of whether the applicant received or did not receive a benefit or suffered a loss or a penalty or other disadvantage. I find that the ITC was not required to provide the applicant with a statement of reasons in relation to part 2 of his application.

Part 3

At part 3, the applicant sought a statement of reasons for the decisions taken in a stage 2 report that was prepared by the Head of Faculty and a further stage 3 report that was prepared by the Student Resolution Academic Committee.

During the course of the review, the Investigating Officer informed the applicant of her view that he had not identified a specific act in either Stages 2 or 3 of the complaints and appeal process for which a statement of reasons might be provided. In submissions to this Office, the applicant outlined a number of issues he believes affected him, including the basis on which certain grades were awarded and the basis for the decision taken on review relating to a 2017/18 module.

I note the ITC’s contention that the Student Complaints and Appeals Procedure does not consider matters pertaining to any assessment and that at no point in either of the Stage 2 or Stage 3 processes were these issues raised by the applicant. Regardless, I find that part 3 of the application does not comprise a valid application for a statement of reasons as the applicant has not identified a specific act or acts for which reasons are sought. It is not reasonable to expect the ITC to examine the reports at issue with a view to identifying relevant acts for which it might be required to provide statements of reasons. I find that the ITC was not required to provide the applicant with a statement of reasons in relation to part 3 of his application.

Part 4

In part 4 of his application to the ITC, the applicant sought a statement of reasons as to why his application to progress while carrying a module at the end of 2017/2018 was rejected. During the course of this review, the ITC provided a statement of reasons.

The statement contains extracts from the ITC’s Academic Standards and Assessment Regulations concerning when a learner may carry a failed module to the next stage. Among other things, the Regulations provide that the learner may cite and document extenuating circumstances in support of an application. The statement sets out examples of extenuating circumstances.

It states that the applicant’s “Application for Permission to Progress Carrying a Module” was reviewed at the ITC’s Progression Board as per ITC policy and procedure and that the application was rejected by the Progression Board. It notes that the reason given by the Board was “Non submission of CA” which, the statement explains, refers to the non-submission of continuous assessment by the learner.

The statement notes that the applicant applied for permission to progress carrying a module under the heading of “Other personal or emotional circumstances”. The application included documentation concerning the applicant’s dyslexia. The statement says that in line with Institute process, this was not viewed by the Progression Board as an extenuating circumstance.

Following further engagements with this Office, the ITC provided further details as to why the applicant’s dyslexia was not considered. It said its requirement for certification in this area requires an assessment to have been conducted in the previous five years and ideally as an adult and that this is in line with recommended practice nationally. It said the certification supplied by the applicant dated from his time in primary school and also referred explicitly to the need to be reassessed in second level.

It is clear from the applicant’s response that he is not satisfied with the decision taken on his application to progress. However, the role of this Office is confined to a consideration of the adequacy of the statement provided. This Office considers that a statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case.  It should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did.  It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However, a statement should necessarily have to contain a detailed clarification of all the issues identified by the applicant as relevant to a particular act or decision.

Given that the applicant included documentation relating to his dyslexia in his application to progress on the basis of extenuating circumstances, it seems to me that the initial statement provided should have explained why the Board did not accept the applicant’s dyslexia as appropriate extenuating circumstances. Nevertheless, the further clarification the ITC provided has addressed this point and I note that this additional clarification was forwarded to the applicant during the course of the review.

In the circumstances, I am satisfied that the ITC has adequately explained why the applicant’s application to progress while carrying a module at the end of 2017/2018 was rejected. I find that it has complied with the requirements of section 10 of the FOI Act.

In conclusion, I should say that the applicant appears to be attempting to use section 10 of the Act to essentially challenge the grades he received and the outcome of the subsequent complaint process, by compelling the ITC to justify each and all of the actions and decisions it took during the process. Section 10 of Act is not an alternative appeals mechanism. As I noted above, the Act does not require the ITC to provide a statement of reasons in respect of each and every action it took in the course of examining his complaint.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the ITC in his case. I find that the ITC was justified in refusing to provide a statement of reasons for parts 1 to 3 of the application for statements of reasons and that it has provided the applicant with an adequate statement in relation to Part 4.

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 persons 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