Decision
Mr O and the Department of Communications, Energy and Natural Resources (the Department)
From Office of the Information Commissioner (OIC)
Case number: 150156
Published on
From Office of the Information Commissioner (OIC)
Case number: 150156
Published on
Whether the decision of the Department, to which section 38 of the FOI Act applies, to partially grant a request for records concerning the National Code System, was justified
22 July 2015
This review arises from a decision made by the Department to partially grant access to records following a request to which section 38 of the FOI Act applies. Section 38 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 directly for a review of that decision to this Office.
On 14 October 2014, the original requester (the applicant) wrote to the Department and sought access to records relating to the National Code System. 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 two third parties. The Department wrote to the third parties on 10 November 2014 and stated that it was considering the release of certain information. The third parties were invited to submit any concerns or views about the possible release of this information. In response, the third parties agreed to the partial release of the requested records. The Department made its final decision on 10 December 2014, and notified the applicant.
The applicant wrote to the Commissioner on 26 May 2015 seeking a review of the Department's decision to partially grant the records. Upon examination of the decision making records this Office noticed that there was no evidence of the Department having notified the third parties of its final decision. The Department has since confirmed to this Office that it did not notify the third parties of its final decision.
Section 38(4) provides that
"A person who receives a notification under subsection (2) may, not later than 3 weeks after such receipt, make submissions to the head concerned in relation to the request to which this section applies referred to in the notification and the head--
(a) shall consider any such submissions so made before deciding whether to grant the request,
(b) shall cause the person to be notified in writing or in such other form as may be determined of the decision, and
(c) if the decision is to grant the request, shall cause to be included in the notification particulars of the right of review of the decision under section 22, the procedure governing the exercise of that right and the time limit governing such exercise."
While I appreciate the efforts of the Department to consult with the third parties, I am mindful that in this situation the Department did not comply with the provisions of section 38(4)(b) and (c), resulting in the third parties not being notified of their right of appeal to this Office.
I have explained the reason for my decision, based on the provisions of section 38(4)(b) and (c) but I note that the Department failed to correctly apply the provisions of section 38 in a number of instances in its decision. For example, the Department did not provide this Office with any evidence that it had informed the applicant of its decision to extend the two week timeline for informing third parties, as provided for at section 38(3); the third parties were not informed that they had three weeks in which to respond to a submission request from the Department, section 38(4) refers; the Department did not provide evidence to this Office that it made a decision on the request within the two week time period, provided for at section 38(5). Furthermore, the Department did not advise the applicant of his right of direct appeal to this Office, following its original decision of 10 December 2014, as provided for at section 22(1)(g).
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 the 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