Case number: 170332

Case Number: 170332

Whether the University was justified in its decision to refuse a request to which section 38 of the FOI Act applies, concerning access to records relating to a number of third parties

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 University to refuse access to 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 13 February 2017, the applicant wrote to the University and sought access to records relating to consultancy services. The University formed the opinion that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with five third parties. The University formally wrote to the third parties on 27 April 2017 inviting submissions about the possible release of this information. One of the third parties made a submission to the University on 02 May 2017 while another requested a meeting with the University to discuss the matter. There was no response from the remaining three parties. On 15 June 2017, the University informed the applicant that it had decided to refuse access to the records he requested.

The applicant sought a review by this Office of the University's decision on 29 June 2017.

Analysis and Findings

Section 38(2)
As I have outlined above, the University 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 parties under 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 the University on 13 February 2017. However, from the records received by this Office, it is clear that the University did not formally contact the affected third parties, as provided for at section 38(2), until 27 April 2017, some 10 weeks after receipt of the request from the applicant. Under section 38(2), the third parties should have been notified by 27 February 2017 at the latest.

Under section 38(5), the FOI body must make a decision whether to grant a request to which section 38 applies not later than two weeks after (i) the receipt of a submission from the third party or (ii) the expiration of the three week time limit available to the third party for making a submission, whichever is the earlier. Allowing for the three week period available to the third parties in this case, a decision should have issued to both the applicant and the third parties by 19 May 2017 at the latest. However, the University did not issue its decision to the third parties until 14 June 2017 and to the applicant until 15 June 2017, almost 4 weeks after the time period for submissions had elapsed.

I am concerned at the significant delay that has arisen for the applicant in receiving a binding determination on his request as a result of the University'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 statutory time limits provided for under section 38 of the Act were applied correctly in this case. Regretfully, it is my view that the decision of the University 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 University will have to conduct a new, first instance decision-making process in which it can apply the section 38 requirements of the Act correctly.

I would like to remind the University of the step by step guide to the application of section 38 and refer it to the sample template letter for third party consultation provided by the Central Policy Unit (CPU) at the Department of Public Expenditure and Reform, which are available at

Finally, while I have referred the matter back to the University because it did not apply the section 38 provisions of the Act properly, it is worth noting that the decision provided by the University to the applicant fell well short of the requirements of the FOI Act. It is not clear from the letter to the applicant that the decision maker considered the harm or public interest tests in section 36 by reference to the content of the records. I take this opportunity to remind the University of its obligations under sections 13(2)(d) of the Act, where an FOI body decides to refuse to grant a request, the notification of the decision shall specify the reasons for the refusal, any provisions of the FOI Act pursuant to which the request is refused, the findings on any material issues relevant to the decision, and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. This Office's Guidance Note on section 36 of the Act, available at, may be of some assistance to the University in this regard.


Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the University 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