Case number: 150175
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 April 2015, the original requester wrote to the Department and sought access to records relating to the proposed redevelopment of Páirc Uí Chaoimh. 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 a third party (the applicant). The Department's decision maker wrote to the applicant on 5 May 2015 and stated that it was considering release of certain information. The applicant was invited to highlight any particular sections he felt should not be released and provide "any rationale he may have for the exclusion of this material." He was advised that the Department may be required to release the records under FOI but that he had a right of appeal to the Commissioner. In response, the applicant outlined arguments as to why the records should not be released. The Department decided to partially grant the records, and the applicant and the original requester were notified of the decision on 29 May 2015.
The applicant wrote to the Commissioner on 10 June 2015 seeking a review of the Department's decision.
Section 38(2) provides that a public body shall, not later than two weeks after the receipt of an FOI request, notify any relevant third parties of the request and that, apart from this section, it falls, in the public interest, to be granted. 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 is such, "...that compliance with that subsection within the period specified therein is not reasonably possible."
The Department received the original request on 14 April 2015. On the same day, the Department notified the requester that it was seeking an extension of two weeks. However, in requesting the extension, the Department did not refer to, or rely on, section 38(3)(a) or any of its subsections. In its letter to the requester, the Department stated that it was in the final weeks of a funding application process concerning a particular Programme. The Department subsequently confirmed to this Office that the requester agreed to the extension. It also explained that it would not have been possible for its staff "to continue to provide the requisite level of service [to its Programme clients] and simultaneously process this FOI request, without a time extension".
While I appreciate the efforts of the Department to seek an extension at the earliest possible opportunity, I am mindful that in this situation an extension can be only requested subject to the provisions of section 38(3)(a)(i) and (ii). Section 38(3)(a) does not provide for an extension to be sought on the grounds of what appears in this case to be a staff resource issue. I find that the Department's request for an extension was not in compliance with the provisions of section 38(3) and consequently, that the request for the extension was invalid. As a result, the Department did not comply with the provisions of section 38(2), when it contacted the applicant on 5 May 2015, which was outside the two week time limit provided for in that section.
Section 38(5) of the FOI Act provides for a requester to be notified in accordance with the provisions of section 13(1)(c). Section 13(1)(c) provides that the public body shall "cause notice...of the decision and determination to be given to the requester concerned". While the public body did notify the requester of its decision to part grant the request, it did not explain what parts of the request were granted and what were refused. Furthermore, the Department did not explain that if the requester was not satisfied with the decision, he had a right under section 22(g) of the Act to make a direct application to the Commissioner. The Department also failed to explain in its decision letter that under the provisions of section 22(4)(a), the requester had just two weeks from the date of the decision letter to make such an application. I note also that while it appears that the decision maker considered that this was a case to which Section 38 applied as release in the public interest was being considered under Sections 35, 36 and 37 as required, this is not made clear in the notification to the third party.
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.