Decision
Ms P and the Department of Environment, Community and Local Government
From Office of the Information Commissioner (OIC)
Case number: 150157
Published on
From Office of the Information Commissioner (OIC)
Case number: 150157
Published on
Whether the decision of the Department to grant a request to which section 38 of the FOI Act applies, involving access to records concerning a project in Duhallow, Co Cork was justified under the FOI Act
10 July 2015
On 3 March 2015 the original requester sought access from the Department to copies of audits / information of a company and correspondence between the Department and members of the Oireachtas regarding the company between the dates 1/4/2011 - 3/3/2015.
This review arises from a decision made by the Department on 18 May 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.
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 30 April 2015 stating that, included in the records was personal information relating to the third party which it was considering for release in the public interest. It allowed the third party until 15 May 2015 to make a submission. The third party responded in a letter dated 11 May 2015 outlining her arguments as to why the records should not be released. The Department decided to release the records and the third party was notified of the decision on 18 May 2015. The original requester was notified of the decision on 6 June 2015.
The third party wrote to the Commissioner on 22 May 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 therefore."
The file shows that the original request was received by the Department on 3 March 2015 with the third party being notified on 30 April 2015. The Department has confirmed this. The Department stated it had on 1 April 2015 identified that it needed to enter into third party consultation and notified the third party of the request on 30 April 2015.
It is clear from the above that the section 38 requirements were not applied correctly in this case. Therefore, following careful consideration, 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.
Elizabeth Dolan
Senior Investigator