Whether the CRA was justified in refusing to provide the applicant with a statement of reasons under section 10 of the FOI Act for its blocking of her Twitter account

20/11/2018

Background

On 31 May 2018, the applicant submitted a request to the CRA under section 10 of the FOI Act for a statement of reasons for its blocking of her Twitter account. On 27 June 2018, the CRA refused to provide a statement of reasons on the ground that the request did not relate to an act that affected her and in respect of which she had a material interest.

On 28 June 2018, the applicant sought an internal review of that decision. The CRA issued its internal review decision on 19 July 2018, in which it affirmed its original decision. On the same day, the applicant sought a review by this Office of the CRA-�s decision.

During the course of the review, the CRA provided this Office with a copy of letter dated 19 July 2018 that it had issued to the applicant outside of the FOI process, notwithstanding its refusal to provide a statement of reasons under section 10. The CRA described the letter as "outlining the reasons why it carried out the action of blocking the Twitter account which [the applicant] operated".  In her submission to this Office dated 7 October 2018, the applicant argued that this letter did not adequately explain why the CRA acted as it did.

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

Scope of Review

This review is concerned with the question of whether the CRA has complied with the requirements of section 10 in respect of the applicant-�s request for a statement of reasons in relation to its blocking of her Twitter account.

Preliminary Matter

It is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. I consider it appropriate, therefore, to have regard to the letter of 19 July 2018 that the CRA issued to the applicant.  

Analysis and Findings

Entitlement to a Statement of Reasons 

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.

Section 10(13) defines -�benefit-� as including (a) any advantage to the person, (b) in respect of an act of an FOI body done at the request of the person, any consequence or effect thereof relating to the person, and (c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

The act identified by the applicant in this case was the CRA-�s blocking of the applicant-�s Twitter account. In a submission to this Office, the CRA argued that it was not required to provide the statement sought for a number of reasons. Firstly, it argued that the right to reasons does not apply to every act of a public body and that "there must be an element of materiality" to the act. Secondly, it argued that the applicant was not personally affected by the act as the act of blocking was against an account and not against the requester. Thirdly, it argued that the applicant had not suffered any disadvantage as she can still access the public feed of the CRA-�s Twitter account without logging in to her Twitter account.

I fully accept that the right to reasons does not apply to every act of a public body. Indeed, this Office has stated on many occasions 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. On the question of materiality, this Office takes the view that, taking section 10 as a whole, 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 this case, I do not accept the CRA's arguments that the applicant was not personally affected by the act on the ground that the act of blocking was against an account and not against the requester or that she had not suffered any disadvantage. The act of blocking the specific account, of which the applicant is the registered user, had the effect of restricting the applicant's ability to use the service to interact with the CRA, unlike all other Twitter users whose accounts have not been blocked. In my view, this is an act that can reasonably be described as the exercise of a power which resulted in the withholding of a benefit to the applicant.

In the circumstances, I am satisfied that the applicant was affected by the CRA's blocking of her Twitter account, and that she has a material interest in a matter affected by that act. Accordingly, I find that the CRA was not justified in refusing to provide a statement of reasons under section 10 in relation to its blocking of the applicant's Twitter account.

Has the CRA provided an adequate statement of reasons?
As I have indicated above, I consider it appropriate to examine whether the explanation given by the CRA to the applicant for blocking her Twitter account in its letter of 19 July 2018 is sufficient to be deemed to meet the requirements of section 10. 

This Office takes the view that a statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. The statement should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did. However, it does not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision, nor is there a requirement that it be in a particular form.

I have examined the letter of 19 July 2018. In essence, the CRA stated that it blocked the applicant's Twitter account as it considered that the posting of three specific tweets, on 28 April 2018, 2 May 2018, and 18 May 2018, ran the risk of undermining its ability to fulfil its statutory function at that point in time. It considered the tweet of 28 April 2018 to feature an amended version of guidance it published in February 2018 entitled "Guidance on Charities and the Promotion of Political Causes". It considered that by tweeting an amended version of the guidance, it could reasonably be interpreted as a document issued by the CRA given that it was produced in the same format and colour and with the same image usage as the actual guidance it had published. 

It went on to state that the applicant-�s twitter account was blocked so that no such document could be fed into its twitter stream using the @Charities_Reg method, such as tweeted on 2 May 2018.

The CRA stated that the tweet of 18 May 2018 featured an image of a tweet emanating from the CRA's Twitter account in relation to a guidance document it published and that it was placed beside an image of a list of charities provided to it as part of a concern raised with it regarding a possible breach of the Charities Act 2009. It stated that it had commenced a compliance review in respect of the concern raised and that it considers it important that in carrying out its statutory functions it seeks to protect information that could reveal sources of information and lines of enquiries. It considered that the posting of the tweet with the CRA tag associated the information in a public way with the CRA and had the potential to reveal a number of active lines of enquiries in addition to placing other charities subject to the scrutiny of the CRA with an undue advantage.

During the course of this review, Ms Swanwick of this Office sought further clarification from the CRA in relation to the tweet of 2 May 2018. The CRA stated the tweet of 2 May 2018 included a retweet of the document that was tweeted on 28 April 2018 and included a reference to the CRA-�s official Twitter account. It stated that as the CRA had formed the view that the document could reasonably be interpreted as a document issued by the CRA, its retweeting and the potential for it to be linked to the CRA-�s official Twitter account were among the factors that led to the blocking of the applicant-�s Twitter account to prevent the linking of such images.

Although the letter dated 19 July 2018 was not formally provided to the applicant in response to her application under section 10, this does not, in my view, preclude the CRA from relying on the contents of that letter as comprising an adequate statement of reasons. Having carefully examined its contents, however, I am not satisfied that it adequately explains how the tweet of 2 May 2018 affected its decision to block the applicant's account, in the absence of the information that the CRA provided to this office on the matter.

As for the remainder of the letter, the applicant argued in her submission of 7 October 2018 to this Office that it does not fulfil the CRA's responsibilities under section 10. However, it seems to me that she is, in essence, challenging the explanation given. For example, she argued that the letter does not explain how the document she tweeted could reasonably be interpreted as a document issued by the Charities Regulator. It seems to me that the letter does, indeed, address this point. It refers to the fact that the CRA considered that the document could reasonably be interpreted as a document issued by it given that it was produced in the same format and colour and with the same image usage as the actual guidance it had published. While the applicant might argue that it would not be reasonable to draw such a conclusion, this Office has no role in determining whether or not that is the case. The important point is that the CRA considered that it could be interpreted in such a fashion and has explained this in its letter.

It also seems to me that the applicant has carried out a detailed analysis of the wording used in the letter to suggest that other interpretations of its reasoning are possible. While the applicant may take issue with the language used, I am of the view that the letter is sufficiently clear to enable her to understand without undue difficulty why the CRA blocked her account, at least in so far as her tweets of 28 April 2018 and 18 May 2018 are concerned. Whether the CRA acted appropriately in taking that action is not a matter for consideration by this Office. For the purposes of section 10, it is sufficient for the CRA to adequately explain why it acted as it did at the time.

In the circumstances, I find that for the purpose of meeting the requirements of section 10, the letter of 19 July 2018 is lacking in detail only in so far as it does not adequately explain how the tweet of 2 May 2018 affected the CRA's decision to block the applicant's Twitter account.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the CRA to refuse to provide the applicant with a statement of reasons for its decision to block her Twitter account. I direct the CRA to issue a revised statement of reasons to the applicant based on the contents of its letter of 19 July 2018 and with the addition of the information it provided to this Office during the review in respect of the applicant's tweet of 2 May 2018.

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