Case 110162

The Senior Investigator found that the section 29 requirements were not applied correctly in this case and annulled the decision of Fáilte Ireland.

Case Summary

Whether the decision of Fáilte Ireland to grant a request to which section 29 of the FOI Act applies, involving access to records is justified.

Date of Decision: 18.11.2011

Review Application to Information Commissioner - Case Number 100162 Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background:

This review arises from a decision  made by Fáilte Ireland on 24 June 2011 to release records following a request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to cases where the public body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record(s) should be released in the public interest. Where section 29 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s),otherwise found to apply, should be overridden in the public interest. The requester or an third affected party, on receiving notice of the final decision of the public body, may apply for a review of that decision to this Office directly.

On 1 June 2011 the original requester sought access to records of correspondence between 'Fáilte Ireland and 1) Department of Transport, Sports and Tourism, 2) Department of Agriculture, 3) Cork City Council and 4)Mr Y in relation to the Irish Sky Garden.'  Fáilte Ireland wrote to Cork City Council (the Council) on 24 June 2011 stating that it had formed the view that the records in question contained information that is commercially sensitive and/or confidential to the Council but that the public interest would, on balance, be better served by granting than by refusing the request. It allowed the Council 15 days to make a submission and the Council responded on 19 July 2011 outlining its arguments as to why the records should not be released. Fáilte Ireland subsequently decided to release the records and the Council and the original requester were notified on 4 August 2011.

The Council wrote to the Commissioner on 17 August 2011 seeking a review of the Fáilte Ireland decision. 

Conducted in accordance with section 34(2) of the FOI Act by Fintan Butler, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Submissions

.

Findings

Section 29

Section 29(2) provides that the public body shall, within 10 working days of receipt of a request, notify any relevant third parties of the following:

"(i) of the request and that, apart from this section, it falls, in the public interest, to   be granted,

(ii) that the person may, not later than 3 weeks after the receipt of the notification,   make submissions to the head in relation to the request, and

(iii) that the head will consider any such submissions before deciding whether to grant or refuse to grant the request."

Section 29(2A)(a) provides that the ten day period may be extended by a maximum of 2 weeks if in the opinion of the head:

"(i) the request relates to such number of records, or

(ii) the number of persons required by subsection (2) to be notified of the matters referred to in paragraphs (i) to (iii) of that subsection is such,

that compliance with that subsection within the period specified therein is not reasonably possible.

(b) Where a period is extended under this subsection, the head concerned shall cause notice in writing, or in such other form as may be determined, to be given to the requester concerned, before the expiration of the period, of the extension and the period thereof and reasons therefor."

The papers on file show that the original request was received by Fáilte Ireland on 2 June 2011 with the third party (Cork City Council) being notified on 24 June 2011. The ten day period provided by section 29(2) expired on 17 June 2011. Fáilte Ireland has confirmed that it did not notify the original requester of any extension of time before 17 June 2011. I note that the requester was notified on 27 July 2011 of an extension of time due to the considerable number of records involved, but this was outside the period provided under section 29(2A)(b). It is also apparent from the papers on file that the Council did not provide its submission to Fáilte Ireland within the 3 week period specified in section 29(2).

It is clear from the above that the section 29 requirements were not applied correctly in this case. Therefore, following careful considerations, it is my view that the decision of Fáilte Ireland should be annulled and I find accordingly. 

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of Fáilte Ireland in the matter.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision.  Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Fintan Butler

Seniorn Investigator

18 November 2011