Case Number 170087

Whether EirGrid was justified in its decision to refuse a request to which section 38 of the FOI Act applies, concerning access to records relating to third parties

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

Background

This review arises from a decision made by EiGrid to refuse access to records following a request to which section 38 of the FOI Act applies. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption 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 30 August 2016, the applicant submitted a request to EirGrid for access to records relating to Maximum Export Capacity Bonds and Transmission Connection Agreements. Having formed the view that the request was one to which section 38 of the FOI Act applied, EirGrid undertook a process of consultation with the relevant third parties. On 23 September 2016, it notified the third parties of the request and stated that it was considering the release of certain information in the public interest. The third parties were invited to submit any concerns or views about the possible release of this information. One third party made a submission to EirGrid on 3 October 2016.

On 18 October 2016, Eirgrid informed the applicant that it was extending the period for considering the request under section 14(1) of the Act by up to four weeks in light of the number and detailed nature of the records sought. On 17 November 2016, EirGrid notified the applicant of its decision on the request. It decided to grant partial access to records it identified as coming within the scope of the applicant's request. It also notified the applicant that it was entitled to apply to Eirgrid for an internal review of that decision within foiur weeks of the date of its decision. On 14 December 2016, the applicant sought an internal review of the original decision. Subsequently, on 7 February 2017, Eirgrid informed the applicant that it had incorrectly applied the provisions of the Act relating to third party consultations. It advised the applicant to apply directly to this Office for a review of its decision. The applicant sought a review by this Office of EirGrid's decision on 16 February 2017.

Analysis and Findings

Section 38(2) provides that the head of a public body shall, not later than two weeks after the receipt of the request, notify any relevant third parties:

"(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."

In this case, the original request was received by Eirgrid on 30 August 2016. However, from the records received by this Office, it is clear that EirGrid did not notify the affected third party, as provided for at section 38(2), until 23 September 2016, more than three weeks after receipt of the request from the applicant. Under section 38(2), the third party should have been notified within two weeks, i.e. by 13 September 2016 at the latest.

As I have outlined above, under section 38(2), a body must notify relevant third parties within two weeks of receipt of the request. Under section 38(3) the body may extend that period by a further period of two weeks if it considers that the request relates to such number of records or the number of persons required to be notified is such that compliance with the two week time frame is not reasonably possible. It appears that no such extension was sought under section 38(3) in this case. Rather, EirGrid sought to apply the provisions of section 14(1) to extend the time frame for considering the request.

EirGrid was mistaken in its belief that it was entitled to extend the decision making period under section 14(1) in respect of the records that were the subject of the section 38 notification process. The provision in section 14 of the Act to extend the time for consideration of FOI requests does not apply in a case requiring formal consultation under section 38 of the Act. Time requirements for processing requests to which section 38 applies are as set out in that section. I find, therefore, that Eirgrid failed to notify the third party within the time frame provided for in section 38.

I further note that under section 38(5), the FOI body must make a decision whether to grant a request to which section 38 applies not later than two weeks after (i) the receipt of a submission from the third party or (ii) the expiration of the three week time limit available to the third party for making a submission, whichever is the earlier. One third party made a submission to EirGrid on 3 October 2016 but no further submissions were received by the deadline of 14 October 2016. Therefore a decision should have issued to both the original requester and the third parties by 28 October 2016 at the latest, two weeks after the deadline for receipt of any remaining third party submissions. However a decision did not issue to the original requester until 17 November 2016. I find, therefore, that EirGrid failed to issue a decision within the time-frame provided for in section 38.

I also note that in its decision of 17 November 2016, EirGrid informed the applicant that it was entitled to apply for an internal review of its decision within four weeks. However, decisions on requests to which section 38 applies are not subject to internal review. Rather, the relevant person may apply directly to the Information Commissioner for a review of the original decision. Furthermore, under section 22(4), such an application must be made within two weeks of the notification of the decision, although the Commissioner may extend that period where he considers that there are reasonable grounds for doing so. While I note that EirGrid subsequently informed the applicant that it should apply to this Office for a review, the time period for making such an application had passed at that stage.

Records not subject to section 38 consultation process
The section 38 notification process is complex. The processing of such requests is often further complicated where some of the records at issue are not captured by the provisions of section 38. As outlined above, section 38 applies where, at some stage in the decision making process, the FOI body has formed the view that the records in question qualify for exemption under one or more of sections 35, 36 and 37 but that the records should be released in the public interest. However, cases will arise where some of the records will not fall to be subject to the section 38 notification process because the FOI body has formed the view that the records should not be released in the public interest, or because it considers that the records are exempt under other sections of the Act (i.e. other than than sections 35, 36 or 37).

Where an FOI body considers that certain records coming within the scope of a request exist and that section 38 does not apply, such records should be separated from the records to which section 38 applies and they should be processed in the same manner as all other requests for records where section 38 does not apply. If a decision is made to refuse access to these records, requesters should be informed of their right to apply for an internal review of that decision.

The consequences of splitting requests in such a manner is that requesters who are not satisfied with the FOI body's decision on the records to which section 38 applies may apply directly to this Office within 2 weeks for a review of the decision but may also apply to the body for an internal review of the decision taken on the remaining records to which section 38 does not apply.

In this case, when EirGrid notified the relevant third party that it was considering the release of certain information in the public interest, it specifically stated that it intended to redact certain information before releasing the records. In other words, it was clear that EirGrid had not formed the view that such information should be released in the public interest. As such, there was no requirement on EirGrid to consult with the third party in respect of that information under section 38. Rather, it should have made a decision on such "non-section 38" information and informed the applicant of its right to apply for an internal review of that decision, and proceeded to apply the correct section 38 notification process to the remaining information.

Conclusion
As I have stated above, the section 38 notification process is complex and can place an onerous burden on decision makers in FOI bodies. However, there are various sources of information available to assist FOI bodies in processing such requests. The Central Policy Unit (CPU) of the Department of Public Expenditure and Reform has published on its website, www.foi.gov.ie, a manual for FOI decision makers which contains guidance on the application of section 38, including some useful letter templates. CPU has also published a specific guidance note on the matter (CPU Notice No. 8 - Requests involving third parties - A step by step guide).

Furthermore, this Office has published its own procedures manual on its website, www.oic.ie. That manual contains, at Appendix 4, a useful commentary on the section 38 provisions. Finally, this Office intends to publish a comprehensive guidance note on the application of section 38 in the coming weeks which, I hope, will be of assistance to all FOI bodies.

In this case, I am concerned at the delay that has arisen for the applicant in receiving a binding determination on his FOI request as a result of Eirgrid's failure to correctly apply the section 38 requirements. However, as I do not consider that the section 38 requirements were applied correctly in this case, regretfully it is my view that the decision of Eirgrid should be annulled and I find accordingly.

Decision

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

Should a valid application be received from any party in relation to the new decision, this Office will endeavour to process that application as quickly as possible and in consideration of the interests of all affected parties.

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