Whether the Department was justified in its decision to grant a request to which section 38 of the FOI Act applies, concerning access to information relating to the applicant

4 March 2022

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 17 November 2021, the Department received a request for access to records of any correspondence since January 2021 between the Minister, the Minister of State, the Secretary General or the Assistant Secretary and a number of named parties, one of which was the applicant. On 15 December 2021, the Department informed the applicant that it was extending the period for considering the request by four weeks, citing section 14(1) of the Act.

On 14 January 2022, the Department wrote to the applicant pursuant to the provisions of section 38 of the Act inviting a submission on the possible release of certain records. The applicant made a submission to the Department on 21 January 2022, following which, by correspondence dated 4 February 2022, the Department notified the applicant of its decision to grant the request. The applicant sought a review by this Office of that decision on 17 February 2022.

Analysis and Findings

Subsection (2) of section 38 the Act provides that an FOI body must,not later than two weeks after the receipt of the request, notify any relevant third parties:

1. of the request and that, apart from this section, it falls, in the public interest, to be granted,
2. 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
3. that the head will consider any such submissions before deciding whether to grant or refuse to grant the request."

Under subsection (3)(a), the FOI body may extend the period specified in subsection (2) for compliance with that subsection by a period ofup to two weeksif it considers that

1. the request relates to such number of records, or
2. the number of persons required by subsection (2) to be notified of the matters referred to in paragraph (i) to (iii) of that subsection is such, that compliance with that subsection within the period specified therein is not reasonably possible.

Under subsection 3(b), where a period is extended, the FOI body must notify the requester,before the expiration of the period, of the extension and the period thereof and reasons therefor.

The effect of subsection (3) is that an FOI body may, provided the requirements of the subsection are met, take up to four weeks to notify the relevant third parties. However, to avail of the two week extension, it must notify the requester within two weeks of receipt of the request.

In this case, the FOI request was received by the Department on 17 November 2021. However, it did not notify the requester of its decision to extend the period for processing the request until 15 December 2021, some four weeks after it had received the request. It also sought to extend the period for processing the request by a period of four weeks, instead of the two weeks permitted by subsection (3)(a). In essence it sought to apply the provisions of section 14 of the Act in circumstances where the appropriate provision to apply was section 38(3). Time requirements for processing requests to which section 38 applies are as set out in that section, and not in section 14. Moreover, the Department did not notify the applicant of the request until 14 January 2022, some eight weeks after it had received the request, instead of the required two weeks, or four weeks where a time extension was appropriate under section 38(3)(a).

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 add that this is by no means the first occasion where the Department has misapplied the provisions of section 38 when processing a request. It is wholly unacceptable for the Department to continue to misapply the section 38 requirements in circumstances where;

• It has been subject to FOI legislation since 1998,
• This Office has had cause to annul decisions made by the Department in the past due to its incorrect application of section 38, and
• There is plenty of guidance available to assist FOI bodies in processing requests.

On this latter point, the Department should be aware of 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. It should also be aware that this Office has also published guidance on section 38 on www.oic.ie, which contains a useful commentary on the section 38 provisions. I would urge the Department to take immediate measures to ensure that its decision makers familiarise themselves with that guidance to ensure that future requests to which section 38 applies are processed in accordance with the provisions of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department 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