Decision
Mr N and the Department of Arts, Heritage and the Gaeltacht
From Office of the Information Commissioner (OIC)
Case number: 150106
Published on
From Office of the Information Commissioner (OIC)
Case number: 150106
Published on
Whether the decision of the Department to grant a request to which section 38 of the FOI Act applies, involving access to documentation concerning the Irish Coursing Club was justified
11 May 2015
This review arises from a decision made by the Department on 1 April 2015 to release records following a request to which section 38 of the FOI Act applies. Section 38 of the FOI Act 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 for a review of that decision to this Office directly.
On 5 February 2015 the original requester sought access to
"All reports/records from Conservation Rangers and all other related documents generated within the National Parks and Wildlife Service regarding hare coursing meetings for 2014/2015 to include meetings (yet to take place), i.e. end of February 2015; and to include returns of captures of hares as per condition no. 3 of the hare capture licence, and also returns as per conditions no. 4, i.e. particulars of hare releases for all coursing clubs, and also copies of post mortem reports carried out on dead hares."
The Department formed the opinion that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with the third party involved.
The Department wrote to the third party on 25 February 2015 stating that, included in the records was commercially sensitive information relating to the Irish Coursing Club (ICC). It allowed the third party until 4 March 2015 to make a submission. The third party responded in a letter dated 2 March 2015 outlining its arguments as to why the records should not be released. The Department decided to release the records and the third party and the original requester were notified of the decision on 1 April 2015.
The third party wrote to the Commissioner on 13 April 2015 seeking a review of the Department's decision.
Section 38(2) provides that the 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."
Section 38(3)(a) provides that the two week period may be extended by a maximum of two weeks if in the opinion of the head:
"(i) the request relates to such number of records, or
(ii) the number of persons required by subsection (2) to be notified of the matters referred to in paragraphs (i) to (iii) of that subsection is such, that compliance with that subsection within the period specified therein is not reasonably possible.
(b) Where a period is extended under this subsection, the head concerned shall cause notice in writing, or in such other form as may be determined, to be given to the requester concerned, before the expiration of the period, of the extension and the period thereof and reasons therefor."
The papers on file show that the original request was received by the Department on 9 February 2015 with the third party being notified on 25 February 2015. The two week period provided by section 38(2) expired on 23 February 2015. The Department has confirmed that it did not notify the original requester of any extension of time before 23 February 2015.
It is clear from the above that the section 38 requirements were not applied correctly in this case. Therefore, following careful considerations, it is my view that the decision of the Department should be annulled and I find accordingly. The effect of this is that the section 38 aspects of its original decision must be put aside and the Department will have to conduct a new, first instance decision making process in which it can apply the section 38 requirements correctly.
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 that the Department conducts a new decision making process which complies with the time requirements of Section 38.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator