Case number: 170170

Case Number: 170170

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 Elizabeth Dolan, 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 concerning particular correspondence about the applicant, 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 2 February 2017, 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 15 February 2017 inviting a submission on the possible release of particular records, and provided copies of those. The applicant made a submission to the Department on 3 March 2017, following which, by letter dated 31 March 2017, the Department notified the applicant of its decision to release the requested records. The applicant sought a review by this Office of that decision on 12 April 2017.

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 Department forwarded a copy of particular records to the applicant on 15 February 2017, inviting the applicant to submit his views on the release of those records by the Department. However, the Department then undertook a further consideration of the scope of the request and identified different records as being the subject of the request. The applicant was not notified about the revised records under consideration by the Department. The Department then made its decision in relation to the revised records it identified, without consulting with the applicant about those records. In communicating its decision to the applicant, the Department failed to inform the applicant that its decision related to different records than those which were the subject of its consultation on 15 February 2017. Consequently, the applicant was not afforded the opportunity to submit his views on the actual records which are the subject of the original FOI request in this case. It is evident, therefore, that the Department failed to consult properly with the applicant under the provisions of section 38 of the Act.

Sections 38(4) & (5)
Sections 38(4) & (5) of the FOI 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 applicant made his submission to the Department on 3 March 2017. On 31 March 2017, the Department notified him of its decision to grant the request, some eleven days outside of the statutory time frame in which to make a decision. This error was further compounded by the fact that the decision was made on the basis of records that had not been sent to the applicant for consultation. The applicant then applied for a review by this Office, but on the understanding that the records incorrectly identified as being the subject of the request were the subject of the decision to release. I note further that no formal decision was sent to the requester as required by the Act.

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 the requirements of section 38 the FOI Act. 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, having full regard to the scope of the request as defined by the applicant in his email of 2 February 2017. 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.


Elizabeth Dolan
Senior Investigator