Whether the Council was justified in its decision to grant a request affecting the interests of Company XY

19 October 2020

Background

This review arises from a decision made by the Council 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 03 June 2020, the Council received a request seeking access to all records relating to complaints and investigations of noise and shadow flicker issues arising from wind turbine operations at Athea, County Limerick. On 09 June 2020 the Council wrote to the original requester seeking search, retrieval and copying fees in order to process the request. The original requester paid a deposit for the estimated search, retrieval and copying fees on 21 July 2020. 

The Council formed the opinion that the request was one to which section 38 of the FOI Act applied and wrote to the relevant third parties on 27 July 2020 inviting submissions on the possible release of certain records. The Council received a submission from the applicant on 1 September 2020 objecting to the release of the records. The Council notified the applicant of its decision to part grant the request on 11 September 2020. The applicant sought a review by this Office of that decision on 25 September 2020.

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.

As outlined above, The Council wrote to the applicant on 27 July 2020 inviting submissions on the possible release of certain records affecting its interests and, in accordance with section 38(2)(ii), informed it that it must do so within three weeks.

On 5 August 2020, the applicant sought clarification of a number of related matters, to which the Council responded on 11 August 2020. On 14 August 2020 the applicant sought further clarification and also sought an extension of two weeks to the period for providing a submission. On 17 August 2020, the Council provided the clarification sought and also agreed to extend the period for making a submission by two weeks. The applicant made a submission on the final day of the extended period.

Under section 38(3)(a), an FOI body may extend the period within which it must notify an affected third party by up to two additional weeks in certain limited circumstances. Those circumstances are where 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 period is not reasonably possible.

The Act does not provide for the extension of the period within which a third party may make a submission.

I further note that while the Council notified the applicant of its decision on the records affecting its interests on 11 September 2020, it informed the original requester, in a letter of the same date, that it had decided to part grant the request and that it would issue its decision letter upon expiry of the period within which the applicant could apply to this Office for a review of its decision. As the applicant sought a review, it appears the Council did not issue its decision letter to the requester.

Under section 22(4)(b), an application for a review of a decision on a request to which section 38 applies must be made within two weeks of the notification of the decision to the relevant person concerned, the relevant persons in this case being both the requester and the applicant. By failing to issue its decision to the requester on 11 September 2020, the date upon which it notified the applicant of its decision, the Council essentially failed to offer the requester an opportunity to apply for a review of its decision.

It is clear that the Council 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 Council’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 Council should be annulled in light of its failure to properly comply with the requirements of section 38. The effect of this is that the Council 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 Council 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 Council 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