Case number: 180232

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

27 June 2018


This review arises from a decision made by the BAI to part 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 23 March 2018, the BAI received a request for certain records regarding the banning of Irish Times journalists from Communicorp radio stations. The BAI formed the opinion that the request was one to which section 38 of the FOI Act applied and wrote to the applicant on 19 April 2018 inviting a submission on the possible release of certain records. Following an exchange of correspondence relating to the records at issue, the BAI extended the deadline for receipt of submissions to 17 May 2018.

The applicant made a submission to the BAI on 17 May 2018. Further exchanges of correspondence followed between the parties relating to further proposed redactions. On 6 June 2018, the BAI informed the applicant of its right to apply to this Office for a review of its decision. On 11 June 2018 the BAI eventually issued its decision on the request to the original requester. The applicant sought a review by this Office of the BAI's decision on 14 June 2018.

Analysis and Findings

The original FOI request was handled extremely poorly by the BAI. Apart from the fact that the BAI appears to have had no regard for the timelines set out in the legislation for handling requests, it also wrongly consulted with the applicant in respect of the release of certain records in circumstances where the Act does not provide for such consultation. While section 38 is a complex provision, the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform has published guidance (FOI Central Policy Unit Notice No. 8) on the procedures to be followed when processing requests to which section 38 applies (available at I would expect the BAI to be aware of its existence.

When to Consult
As the guidance indicates, the FOI Act recognises the importance of protecting sensitive business, personal, or confidential information relating to third parties. Specific protections for this purpose are set out at sections 35 (information obtained in confidence), 36 (commercially sensitive information), and 37 (personal information) of the Act. Where sensitive information in these categories is under particular consideration for release in the public interest, section 38 provides for consultation by public bodies with the affected third parties in such circumstances.

Section 38 therefore applies in cases where, at some stage in the decision making process, the public body has formed the view (subject only to receiving the views of the party who gave the information to the body and/or the party to whom the information relates) that the record in question qualifies for exemption under one or more of the relevant exemptions in the Act relating to third parties, i.e. section 35, 36, or 37, but based on the application of the relevant public interest test, the record should be released. Section 38 does not apply, however, where the public body is considering a public interest balancing test contained in other exemptions, apart from sections 35, 36 and 37.

Let me take section 30 as an example. If a public body considers that the release of a record could reasonably be expected to prejudice the effectiveness of its investigations (section 30(1)(a)) but that the public interest would be better served by the release of the record (section 30(2)), formal consultation with relevant third parties under section 38 is not required. It is a matter for the public body to determine whether the exemption should apply and/or whether the public interest would be better served by release, not any relevant third parties. If it decides that the public interest would be better served by refusing the request, that is the end of the matter.

However, even if the body decides that section 30 does not apply by virtue of the application of the public interest balancing test, it is still open to the body to find that the record also qualifies for exemption under one or more of the relevant third party exemptions (sections 35, 36, and 37) but that the record should be released based on the application of the relevant public interest test contained in those exemptions. In such circumstances, the request is one to which section 38 applies and formal consultation, in accordance with the provisions of section 38, is appropriate.

Section 38 Timeframe
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 three 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."

Section 38(3) provides that the public body may extend the two week period for notifying third parties by up to two additional weeks (four in total) where the amount of records to be considered and/or the number of third parties that must be consulted is such that compliance with the initial two week period is not reasonably possible. If those circumstances arise, the requester must be notified of such an extension and the reasons for the extension prior to the expiry of the initial two week period.

In this case, the FOI request was received by the BAI on 23 March 2018. However, the records received by this Office indicate that the BAI did not formally contact the applicant as provided for at section 38(2) until 19 April 2018, some 4 weeks after receipt of the request from the original requester. Under section 38(2), the applicant should have been formally notified by 10 April 2018 at the latest (allowing for national holidays) as the circumstances for extending the two week notification period did not arise.

Furthermore, while the BAI correctly informed the applicant that any submissions should be made within three weeks, as provided for in section 38(4), it subsequently extended that deadline by a further week and then proceeded to engage in further exchanges of correspondence before eventually issuing its decision on the request.


In this case, it is clear that the BAI did not comply with the section 38 requirements. 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 BAI'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 BAI should be annulled in light of its failure to properly comply with the requirements of section 38. The effect of this is that the BAI 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 acknowledge that section 38 is a difficult provision to apply and that compliance can place an onerous burden on decision makers in FOI bodies. However, I would urge the BAI to have regard to the step by step CPU guidance to the application of section 38, which also includes some useful letter templates. Office has also produced guidance on section 38, available at


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