Whether the decision of the Board, to which section 38 of the FOI Act applies, to part grant a request for records concerning the use of Skellig Michael as a film location, 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 Board to part 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.

The Board received an FOI request from the original requester on 30 June 2015, for access to records relating to notes, memorandums, documents, correspondence, communication and records, including emails and notes of telephone conversations pertaining to the use of Skellig Michael as a film location, from January 2014 to 30 June 2015 . The Board then wrote to the applicant, as an affected third party, on 4 September 2015.

The Board confirmed that it issued its decision on the original requester on 21 September 2015. The Board also confirmed that it issued a decision to the applicant on 5 October 2015.

The applicant wrote to the Commissioner on 19 October 2015 seeking a review of the decision of the Board.

Analysis and Findings

Section 38
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. The original request was received by the Board on 30 June 2015. However, from the records received by this Office, it is clear that the Board did not contact the applicant, as an affected third party, until 4 September 2015, more than nine weeks later.

Section 38(2)
Although the Board made the decision to consult with the applicant as an affected third party on 4 September 2015, this was not in keeping with the provisions of section 38(2) of the FOI Act. As mentioned above, section 38(2) provides that an FOI body shall, not later than 2 weeks after receipt of the request, cause affected third parties to be notified of the request. In effect, this means that having received a request on 30 June 2015, the Board was obliged to notify the applicant by no later than 14 July 2015.

In addition, the Board confirmed to this Office that a letter issued by it to the original requester on 21 September 2015 was an original decision. In that decision, the Board informed the original requester that it had reached a decision to part grant the request. However, the letter then explained that the Board had received "objections to the release of this information". Rather confusingly, the letter concluded that the Board would keep the original requester informed "of any developments regarding the 3rd party appeal as it progresses", thus suggesting that a final original decision had not in fact been made. Records received from the Board indicate that no other correspondence issued to the original requester following the letter of 21 September 2015.

Sections 38(4) & (5)
Sections 38(4) & (5) of the Act provide for notification of the third party and the original requester of the original decision. Also, guidance notes issued by the Central Policy Unit (CPU) at the Department of Public Expenditure and Reform explain a step-by-step process on the application of section 38. In this regard, step 5 of 'Notice 8' explains that the decision maker must inform the third party and the requester of the decision and of their right of appeal to the Information Commissioner within 10 working days. In addition, the CPU notice advises that in a decision to grant or part grant records, those records must not be released by a public body until that 10 working day period has expired. As such, sections 38(4) & (5) provide that when a public body issues a decision to which the provisions of section 38 apply, affected parties must be given an opportunity to appeal to the Information Commissioner within the same 10 working day period. However, as mentioned earlier, the original requester was notified of a decision on 21 September but the applicant third party was notified on 5 October 2015.

Section 22
Section 22(1)(g) of the FOI Act provides for a review by the Commissioner of an original decision on a request to which section 38 applies. However, in its decision letter to part grant access to the records at issue, the decision maker did not refer the original requester to the Office of the Information Commissioner.

I am mindful of the length of time it has taken the Board 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 right of access has not yet been properly considered owing to the flaws in the section 38 process. However, I consider 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.

I find that on the basis that it did not adhere to the statutory time limits, the Board was not in compliance with the provisions of section 38 of the FOI Act.

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

Decision

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

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