Whether the decision of the HSE, to which section 38 of the FOI Act applies, to partially grant a request for records concerning payments made by the HSE to a number of companies, was justified

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review arises from a decision made by the HSE to partially grant access to records following a request to which section 38 of the FOI Act applies. Section 38 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 35, 36 and 37 - 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 38 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 affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.

On 16 November 2014, the original requester submitted a clarified FOI request to the HSE in which he requested access to records relating to payments made by the HSE to a number of companies. The HSE replied to the original requester on 12 December 2014 and stated that under the provisions of section 14(1) of the FOI Act, it was extending the period for consideration of the request by four weeks. The HSE then wrote to the original requester on 16 January 2015 and 16 July 2015 in an attempt to address some of the records at issue. The HSE issued its original decision on the matter on 17 August 2015.

However, prior to its decision, the HSE wrote to the applicant on 21 January 2015 and again on 25 June 2015. In its letter of 25 June 2015, the HSE advised that it was consulting the applicant under the provisions of section 38 of the FOI Act. The HSE stated that it was consulting the applicant as an affected third party, under section 38, about a number of records which affected the applicant's interests. The applicant was then advised of the decision of the HSE on 17 August 2015 and further advised that the applicant had two weeks from the date of the decision to make an application for review to the Information Commissioner.

The applicant wrote to the Commissioner on 27 August 2015 seeking a review of the decision of the HSE.

Analysis and Findings

In a situation where an FOI body forms the view that a request is one to which section 38 of the FOI Act applies, it is required to undertake a process of consultation with the applicant, as an affected third party, in accordance with the provisions of section 38(2) of the FOI Act. Section 38(2) provides that a public body shall, not later than two weeks after the receipt of an FOI request, notify any relevant third parties of the request and that, apart from this section, it falls, in the public interest, to be granted.

However, where, in examining records coming within the scope of the FOI request, an FOI body determines that other records exist but do not impinge on third parties, those records should be separated from the records to which section 38 applies and they should be processed as an FOI request in the normal way. The consequence of this is that the FOI body will be in a position to respond to the request for some records, in accordance with the provisions of section 13 of the Act but will consult under section 38 on those records which it identifies as possibly affecting the interests of third parties.

However, as set out above, any consultation with third parties must be done within two weeks of receipt of the original request, or within a maximum of four weeks, if the FOI body seeks an extension under the provisions of section 38(3).

As outlined above, the original request was received by the HSE in November 2014. However, the HSE did not contact the applicant until 21 January 2015, more than nine weeks later. Moreover, in that letter, the HSE did not advise the applicant of a consultation process on the basis of section 38. In fact, the HSE only requested a submission from the applicant on the basis of section 38, on 25 June 2015, more than six months later.

In addition, in its notification letter of 21 January 2015 to the applicant, the HSE requested a response "within seven days of the date of this letter". Also, in its 'section 38 letter' of 25 June 2015 to the applicant, the HSE requested a response within 14 days of the date of the letter. However, section 38(2)(ii) provides that "the person may, not later than 3 weeks after the receipt of the letter of the notification [my emphasis], make submissions to the head in relation to the request...".

Accordingly I find that on the basis that it did not adhere to the statutory timelimits, the HSE was not in compliance with the provisions of section 38(2), concerning those records affecting the interests of the applicant as a third party.

In conducting this review I also identified a number of other ways in which the HSE did not apply the provisions of section 38 correctly. For example, having part granted access to records under section 38, the HSE should have advised the original requester of his right to submit an application for review to the Commissioner (section 22(4)(a) refers). However, the HSE did not do so. Also, the applicant was advised that an application by a third party to the Commissioner would incur a fee of €50, whereas the fee is €15. In this regard, I would refer to the Guidance Notes developed by the FOI Central Policy Unit under the Code of Practice and in line with the FOI Act 2014. The Guidance Notes provide guidance to FOI bodies on specific issues that may arise in processing FOI requests.

I am mindful of the length of time it has taken the HSE to respond to the original requester and to apply the provisions of section 38 to this decision. It is most unfortunate that the requester's potential right of access has not yet been determined owing to the flaws in the section 38 process. However, it is clear from the above that the section 38 requirements were not applied correctly in this case and that accordingly, the Commissioner's jurisdiction to conduct a review is undermined.

Therefore, following careful consideration, I find that the decision of the HSE should be annulled. The effect of this is that the section 38 aspects of the original decision must be put aside and the HSE will have to conduct a new, first instance decision making process in which it can apply the section 38 requirements correctly.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE in the matter and direct that the HSE conducts a new decision making process which complies with the time requirements of Section 38.

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator