Whether the Department was justified in its decision to grant a request to which section 38 of the FOI Act applies, concerning access to correspondence between the Minister and the applicant.

16 August 2021

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 relating to 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 1 June 2021, the Department received a request for copies of correspondence between the Minister and the applicant in 2021, including a specified letter and any response to that letter. 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 6 July 2021, inviting a submission on the possible release of certain records. The applicant made a submission to the Department on 19 July 2021, following which, by correspondence dated 21 July 2021, the Department notified the applicant of its decision to grant the request. The applicant sought a review by this Office of that decision on 3 August 2021.

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 1 June 2021. 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 6 July 2021. Under section 38(2), the applicant should have been formally notified of the request by 16 June 2021 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