Decision
Company X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-152519-G5Y4W3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152519-G5Y4W3
Published on
The Senior Investigator found that the section 38 requirements were not applied correctly in this case and annulled the decision of the HSE. He directed the HSE to consider the relevant part of the request afresh.
18 October 2024
This review arises from a decision made by the HSE to part-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 records 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 records 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 exemptions, 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 12 June 2024, the HSE received a request for access to records relating to a specified health care facility. On 28 June 2024, the HSE informed the requester that it was necessary to extend the period for considering the request by four weeks due to the voluminous number of records to be processed. Subsequently, on 24 July 2024, it informed the requester that certain records coming within the scope of the request may, if released, affect the interests of third parties. On the same day, it also wrote to the third party applicant notifying it of the request and inviting it to make submissions on the possible release of certain records.
On 30 July 2024, the HSE issued its decision to the requester in respect of the records that were not subject to the Section 38 notification. It informed the requester that it had invited the applicant to make submissions and that further correspondence regarding these records would issue to the requester in due course.
The applicant made submissions to the HSE on 06 September 2024. On 19 September 2024, the HSE notified the applicant of its decision to part grant the request in respect of the records identified as affecting its interests. The applicant sought a review by this Office of that decision on 3 October 2024.
Section 38 contains detailed timelines with which an FOI body must comply when processing a request to which the section applies. Subsection (2) provides that before deciding whether to grant a request, the FOI body must notify the affected third party of the request not later than two weeks after the receipt of the request. Under subsection (3), that two-week period may be extended by a further two weeks where the request relates to such number of records that compliance with the two week period is not reasonably possible. Where a period is extended under this subsection, the FOI body must notify the requester, before the expiration of the period, of the extension and the reasons therefor. Under subsection (4), the affected third party may make submissions to the FOI body not later than three weeks after the receipt of the notification under subsection (2). Under subsection (5), the FOI body must make a decision whether to grant the request not later than two weeks after;
a) the expiration of the three-week time specified in subsection (4), or
b) the receipt of submissions under that subsection in relation to the request from those concerned,
whichever is the earlier.
The HSE failed to adhere to any of the relevant time-frames in this case. While an FOI body is generally entitled, under section 14 of the Act, to extend the period for processing a request for a large number of records by up to four weeks, the extension in the case of a request to which section 38 applies cannot exceed two weeks, pursuant to subsection (3). It also failed to notify the requester of its decision to extend the period for processing the request within the initial two week period as required under subsection (3). Moreover, the HSE incorrectly afforded the applicant additional time over and above the three-week period set out in subsection (4) for making a submission. It also appears that the HSE failed to notify the original requester of its decision on the section 38 records which is in breach of the requirements of section 38(5).
In correspondence with this Office, the HSE said it was only when processing the records that were the subject of the request, that the decision maker became aware of two documents that it considered to require consultation with the applicant. It said it was not possible at that stage to adhere to the timeframes as set out in section 38 of the Act, but it was deemed that the consultation process should proceed.
I assume the HSE is aware of the step by step guide to the application of section 38 (including some letter templates) that is available on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure, NDP Delivery and Reform, 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. Our Guidance warns that early identification of third party information and consideration of exemptions and public interest provisions under section 35, 36 or 37 is essential. The relevant CPU Notice 8 also advises that FOI bodies should examine the records immediately on receiving the request to determine if they contain third party information.
While 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 HSE’s failure to correctly apply the requirements of section 38, and while I am reluctant to take any action that adds further to that delay, I find, on balance, that the decision of the HSE should be annulled in light of its failure to properly comply with those requirements. The effect of this is that the HSE 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 urge the HSE to ensure that its decision makers are fully familiar with the relevant available guidance I have identified above to ensure that the section 38 provisions are properly applied in the future.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE 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.
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