Whether the Department was justified in its decision to grant a request affecting the interests of a Third Party

9 November 2020

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 5 March 2020, the Department received a request for a list of which companies have surrendered their oil and gas licence interests and for any communications between the companies concerned and the Department regarding the surrendering of their interest. Following correspondence from the Department on the matter, the applicant amended his request on the same date and sought a list of any notifications of intention to surrender licenses or license interests from September 2019 to date and copies of any relevant correspondence with the Department between September and November that is not considered commercially sensitive.

The Department formed the opinion that the request was one to which section 38 of the FOI Act applied and on various dates between 12 March 2020 and 25 March 2020, it notified a number of third parties of the request and invited submissions. It notified the applicant of the request on 25 March 2020. On 26 March 2020, the applicant objected to the release of any relevant information.

On 1 April 2020, the Department wrote to the original requester and informed him that it was not possible to issue a decision at that stage due to the restrictions implemented due to Covid-19.  It released some information and informed him that the remainder of the request would be processed when the office reopened.

On 25 September 2020, the Department notified a number of third parties of its decision on the request. On 2 October 2020, it notified the applicant of another record that it had had omitted from its initial notification of 25 March 2020. The applicant replied on the same day, objecting to the release of the record. On 5 October 2020, the Department provided the requester with additional records and informed him that there was “one record pending third party confirmation”. Also on 5 October 2020, it notified the applicant of its decision on the request.

By letter dated 7 October 2020, which this Office received on 20 October 2020, the applicant sought a review by this Office of the Department’s decision to release information affecting its interests.

Analysis and Findings

Section 38(2)

Section 38(2) provides that before deciding whether to grant a request, the 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."

Under section 38(3) the body may extend that period by a further period of up to 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. I am satisfied that section 38(3) has no relevance in this case.

Under section 38(4) a person who receives a notification under section 38(2) may make a submission within three weeks of receipt of the notification. The applicant did so in this case, making its submission the day after it received notification of the request. Under section 38(5), the body must make its decision on the request within two weeks of (a) the expiry of either the time allowed for the making of third party submission or (b) the receipt of submissions.

The records received by this Office indicate that the Department did notify the applicant, being an affected third party, within the time-frame provided for in section 38(2). Under section 38(2), the applicant should have been formally notified by 20 March 2020 at the latest. Subsequently, the Department failed to notify the applicant of its decision until more than six months after receipt of submissions.

While I fully accept that the emergency arrangements that public bodies were forced to make as a result of Covid-19 caused significant difficulties for many FOI bodies in processing requests within the time-frames set out in the Act, the fact remains that the time-frames remained in force. It is clear that the Department did not comply with the section 38 requirements in this case. Indeed, it seems to me that the Department’s failure to notify the applicant of the request within the time-frame set out in section 38(2) was not as a result of the Covid-19 arrangements as those actions took place beforehand. I do not consider it appropriate to proceed with a substantive review of the Department’s decision on the request in circumstances where the Department has failed to meet the statutory requirements of section 38.

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. Nevertheless, 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