Case number: 150122

Whether the decision of the Department to grant a request to which section 38 of the FOI Act applies, involving access to documentation concerning Standard Communications PTY Ltd, was justified

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 2 October 2014 the original requester sought access, in the first instance, from the Department of Agriculture, Food and the Marine for;

"Copy all documentation touching upon and/or concerning any issue raised or represented as regards the safety and/or appropriateness emergency position indicating radio beacons (more commonly known as GME EPIRBs) manufactured by Standard Communications PTY Limited from January 2011 onwards."

The FOI request to which this review applies was initially submitted to the Department of Agriculture, Food and the Marine on 2 October 2014. Had the Department of Agriculture, Food and the Marine, as "the first-mentioned body" in receipt of the request, responded in a timely manner, the original request would have been considered under the provisions of the FOI Act 1997-2003 (the 1997 Act). However, due to a series of delays and other circumstances, the request was not considered (and acknowledged as received) by the second public body to whom it was eventually forwarded, until February 2015, and was considered under the FOI Act 2014, which came into effect on 14 October 2014.

The circumstances of this case are unusual and in the course of the review I identified several instances where the two public bodies involved contributed to a considerable delay in processing the FOI request by not complying with the statutory provisions of the 1997 Act and the FOI Act 2014.

The Department of Agriculture, Food and the Marine sought clarification on the original request but did not do so until 7 November 2014. Given that the Department of Agriculture, Food and the Marine had, effectively, not responded within the time provided for in section 8 of the 1997 Act, the original requester, had he been aware, would have been entitled to apply for an internal review on the basis of a deemed refusal of his original request (section 41(1) of the 1997 Act refers). However, the requester did not do so.

The Department of Agriculture, Food and the Marine then wrote to the original requester on 19 November 2014 and in so doing, concluded that it did not hold the requested records. The Department of Agriculture, Food and the Marine advised that the request was more appropriate to the Department of Transport, Tourism and Sport and stated that it would transfer the request to that Department. The request was transferred on 20 November 2014. In this regard, section 7 of the 1997 Act provides for a requester to receive notification and a summary of the various rights under the Act. The requester did not receive such a notification from the public body within 2 weeks of the receipt of an FOI request.

Section 7(3) of the 1997 Act
Section 7(3) of the 1997 Act provides;

"Where a request under this section is received by the head of a public body ("the head") and the record or records concerned is or are not held by the body ("the first-mentioned body") but, to the knowledge of the head, is or are held by one or more other public bodies, the head shall, as soon as may be, but not more than 2 weeks, after the receipt of the request, cause a copy of the request to be given to the head of the other body or, as the case may be, to the head of that one of the other bodies --

(a) whose functions are, in the opinion of the head, most closely related to the subject matter of the records concerned, or
(b) that, in the opinion of the head, is otherwise most appropriate,

and inform the requester concerned, by notice in writing or in such other form as may be determined, of his or her having done so and thereupon --

(i) the head to whom the copy aforesaid is furnished shall be deemed, for the purposes of this Act, to have received the request under this section and to have received it at the time of the receipt by him or her of the copy, and

(ii) the head shall be deemed, for the purposes of this Act, not to have received the request."

This means that had the Department of Agriculture, Food and the Marine considered the request as soon as it had been received, it would have been in a position to forward the request to the Department of Transport, Tourism and Sport not later than 16 October 2014. The Department of Transport, Tourism and Sport would then have been deemed to have received the request in October 2014. The requester should also have been informed within that time.

The Department of Transport, Tourism and Sport did not receive the request until 20 November 2014 but then it accidentally filed the request without processing it under the FOI Act. In January 2015, the requester sought an update, whereupon the Department also sought clarification on the FOI request from the requester. On receipt of that clarification, the Department of Transport, Tourism and Sport deemed the 2 February 2015 to be the date on which the revised FOI request was made. Consequently, the Department of Transport, Tourism and Sport then considered the revised request under the provisions of the FOI Act 2014.

As such, this review arises from a decision made by the Department of Transport, Tourism and Sport (the Department) to release records following a request to which it applied the provisions of section 38 of the FOI Act 2014. 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 for a review of that decision to this Office directly.

The applicant, who is an affected third party, wrote to the Information Commissioner through its solicitor on 24 April 2015 seeking a review of the Department's decision.

Analysis and Findings

Section 38(2)
The Department formed the view that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with the applicant, as a third party, in accordance with the provisions of section 38(2) of the FOI Act.

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."

On 26 February 2015, the applicant was notified of the request by the Department and was invited to make a submission within 3 weeks. However, as the Department had acknowledged receipt of the 'revised' request on 2 February 2015, section 38(2) provides that a letter to the applicant should have issued no later than 16 February 2015.

Section 38(4)
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. Consequently, the latest date by which the submission should have been received in the Department was 26 March 2015 (allowing for postal delivery). It is not clear the date on which the applicant received the letter of notification from the Department. However, the applicant's submission is dated 8 April 2015, which, even allowing for a reasonable time of three working days for postal deliveries, places the receipt of the submission by the Department from the applicant, outside the 3 week period provided for at section 38(2)(ii).

Section 38(5)
Section 38(5) provides that the head of the public body concerned,

"...shall make a decision whether to grant a request to which this section applies, and shall comply with subsection (4) in relation thereto, not later than 2 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, and section 13(1) [causing notice to be given to the requester concerned] shall be construed and shall have effect accordingly."

With reference to the time limits provided for in sections 38(4) and 38(5) and taking the 26 March 2015 as the relevant date, the decision maker's decision on 8 April 2015, and notification of that decision to the applicant, was within the two weeks provided for in the Act. However, the decision notification letter to the original requester is dated 23 April 2015.
It is clear from the above that the section 38 requirements were not applied correctly in this case. Therefore, following careful consideration I do not consider that the Commissioner has jurisdiction to conduct a review on a decision to which section 38 applies, where the statutory time limits have not been adhered to. It is my view that the decision of the Department should be annulled and I find accordingly.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department in this matter. The effect of this is that the section 38 aspects of the Department's original decision must be put aside and it will have to conduct a new, first instance decision making process in which it can apply the section 38 requirements correctly.

Following that decision, there will be an immediate right of review to this Office in relation to the records covered by the section 38 process. In such circumstances, the original requester will have his/her request processed, albeit not as quickly as it should have been, and the third parties will have the opportunity to have their views considered, with all parties able to avail of an application for review. As such, 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.

Right of Appeal

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