Irish Information Commissioner's Decisions

Whether the Council was justified in refusing to grant a request to which section 38 of the FOI Act applies, concerning records relating to a particular exhumation

26 April  2019  

Background

This review arises from a decision made under Reference  FOI 170-18 by the Council to refuse access to records on foot of  a request to which section 38 of the FOI Act applies. Section 38 applies to cases where the FOI body has formed a view that the record(s) in question are exempt under section 35 (confidential information) and/or section 36 (commercially sensitive information) and/or section 37 (personal information) but that the record(s) should be released in the public interest.

Where section 38 applies, the FOI 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 FOI body, may apply directly to this Office for a review of that decision.

On 3 December 2018, the applicant made an FOI request to the Council for a copy of an application form and related documentation concerning the exhumation of a family member. On 12 December 2018, the Council told the applicant that the records contain material the disclosure of which would affect the interests of third parties. It said that it was considering whether access should be granted to the records in the public interest, which required it to consult with the third parties (apparently under section 38 of the FOI Act). On 20 December 2018, the Council issued its decision on the applicant's request. It refused to grant access to the requested records under section 37 of the FOI Act (personal information) and advised the applicant of his or her right to appeal the decision directly to this Office. On 3 January 2019, the applicant made an application to this Office for a review of the Council's decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Council, the applicant and a third party. I have had regard also to the provisions of the FOI Act.

Analysis and findings

At the outset, I will address arguments made by the third party as to why this Office should not carry out this review.

The FOI Act provides that any person can make an FOI request for records held by FOI bodies. A requester's motive for doing so, whether it is stated or simply suspected, is in the vast majority of cases not relevant to the FOI body's decision. In fact, section 13(4) of the Act explicitly states that, subject to the Act, a decision maker must disregard any reason given or implied for the request. Furthermore, the FOI Act provides for requesters to have rights of review, including by the Information Commissioner, of to decisions made by bodies under the Act. The Act does not entitle me to take account of matters such as those outlined by the third party in this case as to why the application for review should not have been accepted or why the review should not proceed. On the other hand, neither am I entitled to take account of the reasons given by the  applicant  as to why I should direct the FOI body to grant the request. 

I should add here that while I appreciate that the background to the records is distressing and that the handling of the matter has been confusing for the third party, I reject entirely any assertion that this Office was prejudiced, biased or negligent in carrying out this review. 

Section 38
The central matter in my review is whether, in the first place, the Council complied with the requirements of section 38 of the FOI Act. Section 38(2) provides that the head of an FOI 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(4) gives such third parties the right to make submissions to the FOI body, and obliges the body to take those submissions into account. Furthermore, section 38(4) also requires the body to notify such third parties of its decision and, where granting the request, particulars of their rights of review. 

As noted above, the Council told the applicant that it was consulting with relevant third parties under section 38 of the FOI Act. It is not clear to me that the decision maker actually formed a view that the records were exempt but ought to be considered for release in the public interest. In any event, the Council mistakenly believed that it could take account of a separate section 38 consultation with the third party. That consultation had arisen from an earlier, similar FOI request made by another person. Thus, the third party was not given an opportunity to make submissions to the Council in relation to this request, which is broader than the earlier one. Neither did the Council notify its decision on this request to the third party. While the Council told the applicant of its decision to refuse the request and of the right to appeal that decision directly to this Office as provided for in cases to which section 38 applies, I am not satisfied that I have legal power to carry out a review of its decision  to refuse the request when the Council did not comply with other requirements of section 38.

In the circumstances, I have decided to annul the Council's decision and I direct it to carry out a fresh decision making process on the request. I should make it clear that the Council is not obliged to consult under section 38 if, further to the fresh decision making process, it forms the view that the records are exempt under the appropriate FOI Act provisions and that the public interest does not weigh in favour of granting access to them. 

However, if the Council forms the view that in all the circumstances it is appropriate to consult with the third party further to section 38, it should ensure that it complies with all of the provision's requirements. While I recognise that section 38 notification process is complex and can place an onerous burden on decision makers in FOI bodies, there are various sources of information available to assist FOI bodies. The Central Policy Unit (CPU) of the Department of Public Expenditure and Reform has published a manual for FOI decision makers that includes guidance on the application of section 38 and some useful letter templates(https://foi.gov.ie/guidance/manuals/.). It has also published a specific guidance note on third party consultations(https://foi.gov.ie/download/cpu-notice-8-third-party-consultation/).Furthermore, this Office has also published a Guidance Note in relation to the section 38 procedure(https://www.oic.ie/guidance-and-resources/guidance-notes/s38-Guidance-Note-September-2017.pdf).

Finally, I should add that it remains open to the applicant to withdraw the request to the Council in light of my separate decision on Case No 190015 which is being notified to the parties today and which concerns the other FOI request mentioned above. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision on the applicant's request. I direct it to conduct a new decision making process in accordance with the provisions of the FOI Act. 

Right of Appeal

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.

Elizabeth Dolan
Senior Investigator