Case number: OIC-119320-Z5K7F3

Whether the Service was justified in refusing access to information relating to the applicant on the basis of sections 29(1), 33(3)(c), 37(1) and 38 of the FOI Act


05 July 2022



In a request dated 19 September 2021, the applicant sought access to records relating to and referring to him held by the Service from 1 January 2017 to the date of his request. In a decision dated 10 December 2021, the Service part-granted the request, relying on sections 29(1), 33(3)(c), 37(1) and 38 of the Act to refuse access to certain records in whole or I part. I will consider the appropriateness of the section 38 reference below. On 4 January 2022, the applicant sought an internal review of the Service’s decision, following which the Service affirmed the original decision. By letter dated 3 February 2022, the applicant applied to this Office for a review of the Service’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard primarily to the decision-making records and the subject records provided to this Office by the Service. I have also had regard to the applicant’s comments in his application for review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Service was justified in its decision to withhold, in whole or in part, certain records relating to the applicant under various provisions of the FOI Act.

Preliminary Matters

The Service’s handling of this case has been entirely unsatisfactory and demonstrates a misunderstanding and misapplication of key sections within the FOI Act, most notably section 38, which I will consider below. Procedural inadequacies were also identified, as outlined below.

The Service informed the applicant in its original decision that certain documents it holds relate to the Irish Prison Service (IPS) and that “it would be best” for the applicant to contact the IPS directly to enable them to process the request. The FOI Act provides for a right of access to records held by FOI bodies. If the Service holds relevant records, the applicant has a right of access to those records unless they are otherwise exempt pursuant to one or more of the exemptions of the Act. The fact that another FOI body also holds copies or originals of the same records, or the fact that the records “relate” to that other body, does not entitle the Service to refuse to process a request for the records it holds or to ask the requester to redirect the request to that other FOI Body.

There was also a delay in the release of email records to the applicant. The original decision is dated 10 December 2021. In this correspondence the applicant was informed that further email records would issue “shortly”. The Service has confirmed that same were sent on 14 December 2021. The FOI Act provides strict timelines in respect of internal review applications. A delay in the provision of relevant records puts the applicant at a disadvantage in deciding whether to proceed with an internal review.  

Finally, the Service provided document schedules to this Office which included errors which made it difficult to determine which records had been released, refused or part-granted.   

This Office has engaged with the Service in respect of the above. The Service informed the Investigator that training in respect of the FOI Act has been arranged for all decision-makers.

As the Service should be aware, there is a significant amount of guidance and support material available to FOI bodies to assist them in meeting their statutory obligations under the Act. This Office publishes comprehensive guidance notes and sample questions to assist FOI bodies in their decision-making. All of the decisions issued in respect of our reviews are also published.  The Central Policy Unit of the Department of Public Expenditure and Reform also publishes guidance documents, training manuals, and a Code of Practice. In addition to the referenced FOI training above, I strongly urge the Service to ensure that its decision makers avail of the readily available FOI support resources.

Analysis and Findings

Section 38

Section 38 of the FOI Act sets out the procedure to be followed in certain cases where a decision to release information in a record has the potential to affect the interests of a third party. Importantly, section 38 is not an exemption provision. Rather it is a procedural provision which applies in cases where at some stage in the decision making process, the FOI body has formed the view that the record in question qualifies for exemption under section 35 (information obtained in confidence), 36 (commercially sensitive information) or section 37 (personal information), but that the public interest favours release.

Section 38 requires the FOI body to notify the affected third parties that it is proposed to grant the request in the public interest and that the FOI body will consider any submissions from the third parties before deciding whether to grant or refuse the request. There are strict timelines associated with the requirements of section 38.

In the Service’s original decision, section 38 is cited in support of its refusal of a substantial number of records. Of 45 records originally identified, 10 were refused and 4 part-granted on the basis of section 38. 52 of 119 emails separately scheduled and identified as falling within the scope of the request were refused or part-granted on the basis of section 38.

As noted above, section 38 becomes relevant in certain circumstances where sections 35, 36 or 37 are being claimed. In respect of the records to which section 38 is cited, the Service does not refer to any of the three relevant exemptions in its decision making records or the schedule provided to this Office. Even if section 38 was triggered by virtue of one or more of the other exemptions, the procedural requirements of the section have not been met.

All of this leaves me in a position where I find it very difficult to progress this review in any meaningful way. Sections 29(1), 37(1) and 33(3) are relied on in respect of a smaller number of records. 10 of the original records identified and 34 emails were refused or part-granted on the basis of one or more of those exemptions. While I could consider the application of these exemptions, it seems to me that the erroneous application of section 38 entirely undermines the validity of the decision-making process engaged in by the Service. I note that an Investigator from this Office contacted the Service and it acknowledged the deficiencies in its application of section 38.

I note that under section 22(12)(b) a decision to refuse to grant a request shall be presumed not to have been justified unless the body satisfies this Office that its decision was justified. However, given that at least some of the records contain sensitive personal details, it is not appropriate for me to simply direct the release of all relevant records without a comprehensive initial review of the nature and contents of the records being undertaken. The Service is the appropriate body to undertake such a review. I understand that this will result in further delays for the applicant but I do not believe any other course of action would be appropriate.

Accordingly, I am satisfied that the appropriate course of action in this case is to annul the Service’s decision and direct it to undertake a fresh decision making process in relation to the applicant’s request. The effect of this finding is that the Service should consider the request afresh and make a new, first instance, decision in respect of it. The applicant will then have a right to internal review and to a review by this Office if he is not satisfied with that decision.

In making its decision, the Service must comply with the statutory requirements of the FOI Act. This Office has published a comprehensive guidance note on section 38 on our website, here The Central Policy Unit of the Department of Public Expenditure and Reform has also published a step by step guide for processing requests to which section 38 of the Act applies, here:


Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Service and direct it to undertake a fresh decision making process in relation to the FOI request.

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