30 November 2018

Whether the Department was justified in its decision to grant a request affecting the interests of  Ms K

Background

This review arises from a decision made by the Department to grant 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 13 September 2018, the Department received a request seeking access to records relating to any indemnities given by the Minister to the main contractor or any of the sub contractors engaged by the Department regarding the clean up of the Irish Steel Site in Haulbowline, Co Cork. The Department formed the opinion that the request was one to which section 38 of the FOI Act applied and wrote to the applicant on 16 October 2018 inviting a submission on the possible release of certain records. The applicant made a submission to the Department on 18 October 2018, following which, by letter dated 09 November 2018, the Department notified the applicant of its decision to grant the request. The applicant sought a review by this Office of that decision on 14 November 2018.

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 FOI request was received by the Department on 13 September 2018.  However, the records received by this Office indicate that the Department did not formally contact the affected third party, as provided for at section 38(2), until 16 October 2018, some 4 weeks after receipt of the request from the original requester. Under section 38(2), the applicant should have been formally notified by 27 September 2018 at the latest.

It is clear that the Department did not comply with the section 38 requirements in this case. I am concerned at the delay that has arisen for both the requester and the applicant in receiving a binding determination on the matter as a result of the Department-™s failure to correctly apply those requirements. While I am reluctant to take any action that adds further to that delay, I find that the decision of the Department should be annulled in light of its failure to properly comply with the requirements of section 38. The effect of this is that 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 also like to bring the attention of the Department to the step by step guide to the application of section 38 (including some letter templates) provided by the Central Policy Unit of the Department of Public Expenditure and Reform which is available at www.foi.gov.ie. This Office has also published guidance on section 38 on www.oic.ie, which contains a useful commentary on the Section 38 provisions. 

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