Case number: 160358
This review arises from a decision made by EirGrid to release 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 26 May 2016, the first party applicant wrote to EirGrid and sought access to records relating to a third party. EirGrid formed the opinion that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with the third party. EirGrid formally wrote to the third party on 14 July 2016. The third party was invited to submit any concerns or views about the possible release of certain information. The third party made a submission to EirGrid on 3 August 2016, following which, by letter dated 17 August 2016, EirGrid appears to have decided to release some of the requested records with some information redacted.
The applicant sought a review by this Office of EirGrid's decision on 1 September 2016.
As I have outlined above, EirGrid 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 relevant 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."
In this case, the original request was received by EirGrid on 26 May 2016. The applicant agreed to refine the scope of the request and this was finalised on 17 June 2016. However, from the records received by this Office, it is clear that EirGrid did not formally contact the affected third party, as provided for at section 38(2), until 14 July 2016, some 4 weeks after receipt of the refined request from the applicant. Under section 38(2), the third party should have been notified by 1 July 2016 at the latest.
In addition, the notification to the third party does not make it entirely clear as to which records the decision maker considered fell to be released in the public interest subject to considering the third parties' submissions; it is not clear from the letter of 14 July 2016 whether the redactions detailed in the Schedule fell to be released in the public interest and whether all of the other records/parts of records were found not to be exempt under the relevant exemptions. For example, was the decision maker of the view at consultation stage that it was in the public interest to release the names of employees redacted as exempt under section 37?
It seems to me that if record 8 - West Dublin Stage 2 Report - (numbered 8 on the schedules provided but referred to as record 6 by the third party), which appears to be in the public domain and to which no exemption appears to be applied in the Schedule, was not being considered for release in the public interest under section 35(3), 36(3) or 37(5), it is not a record to which section 38 applies with the consequence that the third party may have no right of appeal to the Commissioner against that part of the decision. Further, the decision schedule for parts of records 3 and 4 makes reference to exemptions under section 29(deliberative process) and section 30(functions and negotiations) which are not exemptions to which section 38 can apply. This is because it cannot be said that, apart from section 38, the request would fall to be granted. Again, the third party right of appeal, stems only from those parts of a decision to which section 38 applies i.e. sections 35(1)(a), 36 and 37.
Perhaps most importantly, the requester does not appear to have been notified of the decision of 17 August 2016 at all although Eirgrid did notify her at a later date of the fact that the third party had appealed to this Office. It seems to me that, apart from the requirement in the Act to notify the requester of the decision, she may also have had a right of internal review in respect of any parts of the decision to which section 38 does not apply as well as a right to appeal directly to the Commissioner against any decision of the FOI body to refuse access to parts of the records to which section 38 does apply.
I acknowledge that section 38 is a difficult provision to apply and that compliance can place an onerous burden on decision makers in FOI bodies. I am concerned at the delay that has arisen for the applicant in receiving a binding determination on her request as a result of EirGrid's failure to correctly apply those requirements. While I am reluctant to take any action that adds further to that delay, I do not consider that the section 38 requirements were applied correctly in this case. Regretfully, it is my view that the decision of EirGrid 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 EirGrid will have to conduct a new, first instance decision-making process in which it can apply the section 38 requirements of the Act correctly. Finally, I would like to remind EirGrid of the step by step guide to the application of section 38 (including some letter templates) provided by the Central Policy Unit (CPU) at the Department of Public Expenditure and Reform, which is available at www.foi.gov.ie. The Commissioner's Procedures Manual on www.oic.ie also contains, at Appendix 4, a commentary on the Section 38 provisions.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of EirGrid in the matter and direct it to conduct a new decision making process which complies with the requirements of Section 38 of the Act.
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.