Whether Dublin City Council 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

25 August 2021

Background

This review arises from a decision made by Dublin City Council to part grant access to records following a request to which section 38 of the FOI Act applies. Section 38 applies to cases where the public body has decided that the record(s) in question qualify for exemptions 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 15 February 2021, the applicant wrote to the Council requesting records. The Council 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 Council formally wrote to the third party on 11 March 2021 inviting submissions about the possible release of this information.  
The Council issued its first decision on 18 March 2021 to part grant access to some relevant records. The third party made a submission to the Council on 19 March 2021, following which, by letter dated 12 April 2021, the Council informed the applicant that it had decided to part grant access to further records he had requested. The Council also informed the applicant, in both letters, of his right to an internal review. On 4 May 2021, the applicant requested an internal review of the Council’s decisions and on 13 July 2021, the Council issued a decision affirming its previous decision. 

The applicant sought a review by this Office of the Council’s decision on 17 August 2021. 

Preliminary matter 

I note that the applicant refers to the Commissioner for Environmental Information in his application to this Office. This review is based on a request under the FOI Act, which was treated as such by the Council. Should the applicant wish to have this matter considered under the AIE Regulations, a separate request would have to be made to the Council in the first instance under those Regulations. 

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 Council received the original request on 19 February 2021. However, the records received by this Office show that the Council did not formally contact the affected third party, as provided for at section 38(2), until 11 March 2021, some 3 weeks after receipt of the request from the applicant. Under section 38(2), any affected third parties should have been notified by 5 March 2021 at the latest. 

The third party made its submission on 19 March 2021. Under section 38 of the FOI Act, the Council should have issued a decision to both the applicant and the third party no later than 2 April 2021. In this case, however, the Council issued decisions to the applicant on 18 March 2021 and 12 April 2021, while the third party did not receive a copy of the decisions. The applicant was also incorrectly informed of his rights to seek an internal review from the Council.  

Both the applicant and the third party should have received decisions by 2 April 2021 setting out the Council’s decision on the request and informing them that any appeal should be made to the Office of the Information Commissioner no later than two weeks from the date of the decision. It appears to me that the Council did not comply with the requirements of section 38 in this case.  

I am concerned at the delay that has arisen for all parties in receiving a binding determination on the matter as a result of the Council’s failure to apply the requirements of the FOI Act correctly. While I am reluctant to make a decision that might result in further 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 of the FOI Act. 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 FOI 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 provisions of Section 38. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council and direct it to conduct a new decision making process which complies with the requirements of Section 38 of the FOI 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.

Deirdre McGoldrick 

Senior Investigator