Whether the Department was justified in its decision to part grant a request to which section 38 of the FOI Act applies, concerning access to records relating to a third party

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 the Department to part grant 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 3 August 2017, the applicant wrote to the Department and sought access to records relating to wildlife parks. The Department formed the opinion that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with a third party. The Department formally wrote to the third party on 31 August 2017 inviting a submission about the possible release of certain information. The third party made a submission to the Department on 13 September 2017. On 15 September 2017, the Department informed the applicant that it had decided to part grant access to the records he requested and informed the applicant of his right to an internal review of its decision. The applicant sought an internal review on 16 September 2017. On 12 October 2017 the Department upheld its original decision and informed the applicant that he may appeal its decision to this Office within 2 weeks. 

The applicant sought a review by this Office of the Department's decision on 10 November 2017.

Analysis and Findings

Section 38(2)
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 the Department on 3 August 2017. However, from the records received by this Office, it is clear that the Department did not formally contact the affected third party, as provided for at section 38(2), until 31 August 2017, some 4 weeks after receipt of the request from the applicant. Under section 38(2), the third party should have been notified by 18 August 2017 at the latest. 

I also note that in its decision of 15 September 2017, the Department informed the applicant that he 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. Following on from the Department's instructions, the applicant sought an internal review on 16 September 2017. In its internal review decision letter to the applicant dated 12 October 2017, the Department informed him that he may apply to this Office for a review. By that stage, however, the time period for making such an application had passed.

Furthermore, I note that while the Department communicated to the third party what information it proposed to release, it did not formally inform the third party of its decision or its right of appeal of that decision.

I am concerned at the significant delay that has arisen for the applicant in receiving a binding determination on his request as a result of the Department's failure to correctly apply the Section 38 requirements. While I am reluctant to take any action that adds further to that delay, I do not consider that the statutory time limits provided for under section 38 of the Act were applied correctly in this case. Regretfully, it is my view that the decision of the Department should be annulled and I find accordingly.

The effect of this is that the section 38 aspects of the original decision must be put aside and the Department will have to conduct a new, first instance decision-making process in which it can apply the section 38 requirements of the Act correctly. 

I would like to remind the Department of the step by step guide to the application of section 38 and refer it to the sample template letter for third party consultation provided by the Central Policy Unit (CPU) at the Department of Public Expenditure and Reform, which are available at www.foi.gov.ie.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department 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