Decision
Company X and Sport Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-151926-Q2Z9J7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151926-Q2Z9J7
Published on
Whether Sport Ireland was justified in its decision to part-grant a request to which section 38 of the FOI Act applies, concerning access to information relating to a third party
19 September 2024
This review arises from a decision made by Sport Ireland 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 05 July 2024, Sport Ireland received an FOI request from a requester seeking access to records relating to an auditing report. On 05 July 2024, Sport Ireland wrote to the requester seeking clarification on the report that was requested. On 08 July 2024, the requester’s reply was received by Sport Ireland, confirming the audit report sought.
On 30 July 2024, Sport Ireland wrote to the affected third party notifying it of the request and inviting it to make submissions on the possible release of certain records.
The third party made submissions to Sport Ireland on 21 August 2024.
On 26 August 2024, Sport Ireland notified the third party that it had considered the specific objections raised in its submission and had applied redactions in each of these instances. Sport Ireland informed the third party that the document in question was set for release at close of business on 27 August 2024 and advised the third party that it should inform Sport Ireland if it had “any further objections, would like to make an appeal on the release of the record, or require more time to review.”
On 09 September 2024, Sport Ireland notified the third party of its intention to release the record again. On this occasion it advised the third party of its right of appeal to the Information Commissioner.
The third party sought a review from this Office on 10 September 2024. On the same date, Sport Ireland notified the original requester that the third party had appealed its decision.
Section 38(2) provides that before deciding whether to grant a request to which section 38 applies, the FOI body must notify the affected third party of the request not later than two weeks after the receipt of the request. Under section 38(4), the affected third party may make submissions to the FOI body not later than three weeks after the receipt of the notification. Under section 38(5), the FOI body must make a decision whether to grant the request not later than two weeks after;
a) the expiration of the 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.
In this case, I accept that Sport Ireland was entitled to treat the request at issue as having been received on 08 July 2024, being the date upon which it received the original requester’s clarification of the scope of the request. On 30 July 2024, Sport Ireland notified the third party of the request. In accordance with Section 38(2), Sport Ireland was required to notify the third party of the request not later than two weeks after receiving the request. The third party was notified of the request after the deadline had passed, which is in breach of the requirements of Section 38(2).
The third party made submissions to Sport Ireland on 21 August 2024. In accordance with section 38(5), Sport Ireland was required to make a decision on the request within two weeks of the receipt of those submissions, i.e. by 04 September 2024. While Sport Ireland did write to the third party on 26 August 2024, it did not advise the third party of its right of appeal under Section 22, which is in breach of the requirements of Section 38(4)(c).
Sport Ireland wrote to the third party on 09 September 2024, again notifying the third party of its decision and it included a copy of the final redacted record set for release. While it notified the third party of its right of appeal to this Office, this notification was outside the two-week timeframe for notifying the third party, which is in breach of the requirements of Section 38(5).
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 Sport Ireland’s failure to correctly apply those requirements, and while I am reluctant to take any action that adds further to that delay, I find, on balance, that the decision of Sport Ireland should be annulled in light of its failure to properly comply with the requirements of section 38. The effect of this is that Sport Ireland 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 assume Sport Ireland 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 of the Department of Public Expenditure 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. I would urge Sport Ireland to ensure that its decision makers are fully familiar with this guidance, 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 Sport Ireland 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