Case number: OIC-127976-G4S9D3
21 September 2022
This review arises from a decision made by Transport Infrastructure Ireland (TII) to refuse 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 12 November 2021, TII received eleven FOI requests from the applicant seeking access to different records relating to roads. On 26 November 2021, TII wrote to the applicant inviting him to reduce the number of FOI requests or the scope of his requests. On 04 April 2022, the applicant replied reducing the number of FOI requests to eight.
On 14 April 2022, TII contacted the applicant and invited him to further reduce the number of FOI requests, or the scope of his requests. On 26 May 2022, the applicant responded and reduced his requests from eight to four. TII wrote to the applicant on 03, 15 and 27 June 2022 seeking clarification in relation to his requests. The applicant replied on 27 June 2022 clarifying the scope of his requests. This decision relates to one of the four FOI requests submitted.
TII formed the opinion that this request was one to which section 38 of the FOI Act applied and wrote to the applicant on 14 July 2022, informing him that it was required to consult with any affected third parties. On 14 July 2022, TII wrote to the affected third party inviting it to make a submission on the possible release of certain records. The third party made submissions to TII on 04 August 2022.
TII notified the applicant and the third party of its decision to refuse the request on 24 August 2022. The applicant sought a review by this Office of that decision on 07 September 2022.
Section 38(2) provides that the head of a 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.
In this case, I accept that TII was entitled to treat the request at issue as having been received on 27 June, 2022, being the date upon which the applicant clarified the scope of his requests. However, the records received by this Office indicate that TII did not formally contact the affected third party, as provided for at section 38(2), until 14 July 2022. Under section 38(2), the third party should have been formally notified of the request by 11 July 2022 at the latest.
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.
TII invited the third party to make submissions on the possible release of certain records which may affect its interests on 14 July 2022. The third party made submissions to TII on 04 August 2022.
In accordance with section 38(5), TII was required to make a decision on the request within two weeks of the receipt of those submissions, i.e. by 18 August 2022. TII did not issue its decision until 24 August 2022, which is in breach of the requirements of section 38(5).
While I am concerned at the delay that has arisen for both the applicant and the relevant third party in receiving a binding determination on the matter as a result of TII’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 TII should be annulled in light of its failure to properly comply with the requirements of section 38. The effect of this is that TII 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 TII 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 TII 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.
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.