Case number: 160568

Case Number: 160568

Whether the Department was justified in its decision to grant a request to which section 38 of the FOI Act applies, concerning access to records relating to the applicant

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


This review arises from a decision made by the Department to release records following 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 record(s) 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 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 24 August 2016, the Department received a request seeking access to records relating to the applicant. 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 the applicant. The Department formally wrote to the applicant on 5 October 2016 inviting a submission on the possible release of certain records. The applicant made a submission to the Department on 28 October 2016, following which, by letter dated 6 December 2016, the Department notified the applicant of its decision to release some of the requested records, either in whole or in part. The applicant sought a review by this Office of that decision on 19 December 2016.

Analysis and Findings

Section 38(2)
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 FOI request was received by the Department on 24 August 2016. The original requester subsequently agreed to refine the scope of the request and this was finalised on 15 September 2016. However, the records received by this Office indicate that the Department did not formally contact the affected third party, as provided for at section 38(2), until 5 October 2016, some 3 weeks after receipt of the refined request from the original requester. Under section 38(2), the applicant should have been notified by 29 September 2016 at the latest.

Sections 38(4) & (5)
Sections 38(4) & (5) of the Act provide that the Department is required to notify the third party and the original requester of its decision within 10 working days of receipt of submissions from the third party or within 10 working days of the expiration of the time limit available to the third party, whichever is the earlier.

The third party submission was made to the Department on 28 October 2016, two days outside of the time limit in which to make submissions. A decision on the request fell due not later than 10 November 2016. No formal decision issued to the requester in accordance with the requirement of the Act to notify him. Instead, the requester was informed by email on 1 December 2016 that a decision would be sent to the applicant with a copy of the records for release. Furthermore, the requester was not informed of his right of review in respect of any records not granted. On 6 December 2016, a decision issued to the applicant, some 4 weeks outside of the statutory time frame to issue a decision.

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 both the requester and the applicant in receiving a binding determination on the matter as a result of the Department'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 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 of the Act correctly. Finally, I would like to remind the Department 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 The Commissioner's Procedures Manual on also contains, at Appendix 4, a useful 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 the Department 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.

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.

Stephen Rafferty
Senior Investigator