Case number: 190200
14 May 2019
This review arises from a decision made by the Arts Council to part grant 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 7 December 2018, the applicant wrote to the Arts Council requesting records. On 20 December 2018, the scope of this request was then narrowed down to copies of board packs received by the FOI body from a third party. The Arts Council formed the opinion that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with a third party. The Arts Council formally wrote to the third party on 8 February 2019 inviting submissions about the possible release of this information. The third party made a submission to the Arts Council on 1 March 2019, following which, by letter dated 3 April 2019, the Arts Council informed the applicant that it had decided to part grant access to the records he requested.
The applicant sought a review by this Office of the Arts Council’s decision on 29 April 2019.
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 Arts Council on 7 December 2018, before the scope was narrowed on 20 December 2018. However, from the records received by this Office, it is clear that the Arts Council did not formally contact the affected third party, as provided for at section 38(2), until 8 February 2019, some 7 weeks after receipt of the request from the applicant. Under section 38(2), the third parties should have been notified by 8 January 2019 at the latest.
It is clear that the Arts Council did not comply with the section 38 requirements in this case. I am concerned at the delay that has arisen for all parties in receiving a binding determination on the matter as a result of the Arts Council’s failure to correctly apply those requirements. While I am reluctant to take any action that adds further to that delay, I find that the decision of the Arts Council should be annulled in light of its failure to properly comply with the requirements of section 38. The effect of this is that the Arts Council 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 also like to bring the attention of the Arts Council to the step by step guide to the application of section 38 (including some letter templates) provided by the Central Policy Unit of the Department of Public Expenditure and Reform which is available at www.foi.gov.ie. This Office has also published guidance on section 38 on www.oic.ie, which contains 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 Arts Council 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.