Case 110081

The Senior Investigator found that the section 29 procedures were not applied correctly in this case and annulled the decision of Kerry County Council, in so far as it relates to proposed release of records in accordance with section 29 of the FOI Act.

Case Summary

Whether the decision of Kerry County Council to grant a request to which section 29 of the FOI Act applies, involving access to documentation concerning a Planning Enforcement File, is justified.

Date of Decision: 21.03.2012

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

This review arises from a decision made by Kerry County Council ("the Council") on 14 March 2011 to release records following a request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to FOI requests 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 obtained in confidence, commercially sensitive or is personal to the 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), found otherwise to apply, should be overridden in the public interest. The requester or an affected third party, on receiving notice of the final decision of the public body, if they so wish, may apply for a review of that decision to this Office directly.

On 12 January 2011 the original requester sought copies of Planning Enforcement "File number U254/08 in the name of: [named company] Ltd, ...Documents after the 20 November 2009; up to and including the present". The Council formed the opinion that the request was one to which section 29 of the FOI Act applied and undertook a process of formal consultation with the third parties involved. The Council wrote to Mr Y [ ...address... ], on 14 February 2011, as the applicant's representative, stating that it had formed the view that the records in question contained information that is commercially sensitive but that the public interest would, on balance, be better served by granting than by refusing the request. It allowed Mr Y 15 days to make a submission, on behalf of his client. In response, the applicant's solicitor, [ .....] ("the solicitor")  responded on 28 February 2011 outlining his client's arguments as to why the records should not be released.

The original requester was notified by the Council of its decision on 14 March 2011 to grant access in full to some records, to grant partial access to other records(with deletions) and to refuse access to the remaining records. I note that the Council indicated to the applicant's solicitor its intention to release records affecting his clients interests in its letter dated 10 March 2011 but did not inform him of its formal decision until 31 March 2011. I further note that the applicant's solicitor subsequently engaged in correspondence with the Council appealing that decision, culminating with the Council issuing a further letter (dated 27 April 2011) to the solicitor that his client should appeal directly to the Information Commissioner, within two weeks of receipt of the letter.  

The solicitor, on behalf of its client, wrote to the Commissioner on 10 May 2011 seeking a review of the Council's decision.

Initially Mr Brian Murnane, Investigator of this Office, issued preliminary views that the records or parts of records under review should be released in the public interest in accordance with the FOI Act. However, following further review he advised both the Council and the applicant's representative and solicitor that that the Commissioner may have to discontinue the review under the FOI Act, as the Council may not have complied with the conditions of section 29 of the Act in arriving at its decision in so far as it relates to the timelines provided for in the Act.

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

Submissions

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Findings

Section 29

Section 29(2) provides that the public body shall, within 10 working days of receipt of the 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 Kerry County Council on 17 January 2011. The ten day period provided by section 29(2) expired on 31 January 2011.  The representative of  Mr X  was notified on 14 February 2011. The original requester was notified on 8 February 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).  The Council  has confirmed that it did not notify the original requester of any extension of time before 31 January 2011.

I  note that the Council notified its decision to the original requester on 14 March 2011 of its decision to release in full or in part 82 of the 179 records in  the Planning Enforcement File U254/08 but delayed notifying the applicants' solicitor of its final decision until 31 March 2011. It also further engaged with  applicant's solicitor in correspondence between the 11 and 27 April 2011. The  outcome of that delay is that the  applicant's solicitor only appealed the Council's decision to this Office on 10 May 2011 which was accepted for review on 17 June 2011. 

It is clear from the above that the section 29 requirements were not applied correctly in this case. The Council accepts that the section 29 consultation procedures did not take place within the prescribed statutory deadlines and while it may have done so in order to give all parties the right to make submissions and the right of appeal to the Commissioner, it did so to the detriment of the statutory periods as laid down in the FOI Act.

Therefore, following careful considerations, it is my view that the section 29 aspect of the Council's decision of 14 March 2011 should be annulled and I  find accordingly.  The effect of this is that the section 29 aspects of its original decision must be put aside and the Council will have to conduct a new, first instance decision making process in which it can apply the section 29 requirements correctly. 

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of Kerry County Council 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.

Stephen Rafferty

Senior Investigator

21 March 2012