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Whether the decision of QQI, to which section 38 of the FOI Act applies, to grant a request for records concerning inspection reports on the accreditation and co-ordination of English language services, was justified

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

Background

This review arises from a decision made by QQI to 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.

QQI confirmed to this Office that it received an FOI request from the original requester on 26 April 2015, for access to records relating to copies of inspection reports carried out by QQI on the accreditation and co-ordination of English language services. QQI also confirmed that it made a decision on the original request in March 2015. QQI replied again to the original requester on 22 June 2015 and stated that it had "made a final decision to grant [the] request subject to section 38 of the 2014 [FOI] Act."

QQI wrote to the applicant, as an affected third party, on 13 August 2015. QQI then issued a further letter on 30 September 2015 to both the original requester and the applicant and stated that it had "formally decided to grant the [original] requester access to the records..."

The applicant wrote to the Commissioner on 13 October 2015 seeking a review of the decision of QQI.

Analysis and Findings

Section 38
Section 38(2) provides that a public body shall, not later than two weeks after the receipt of an FOI request, notify any relevant third parties of the request and that, apart from this section, it falls, in the public interest, to be granted. The original request was received by QQI on 26 April 2015. However, from the records received by this Office, it is clear that QQI did not contact the affected third parties until 13 August 2015, which is some 16 weeks later.

QQI explained to this Office that it was dealing with several FOI requests involving the original requester. The sequence of events is confusing and the timelines are in conflict. I do not think any purpose would be served by setting out here all the various contacts. I accept that QQI attempted to give access to a number of records to the requester outside of FOI and that this process may have impacted on the application of the timelines under section 38 of the Act.

In its letter of 22 June 2015, QQI stated that had made a "final decision" in response to the original requester's internal review request and concluded by advising the requester of the process for consultation under section 38. However, QQI also incorrectly advised the requester that he could appeal the decision of 22 June to the Information Commissioner within six months of the date of that decision. In that letter, QQI also informed the original requester that it was proceeding to formally consult with affected third parties under section 38 of the Act. It is possible that QQI intended this letter to be an original decision. However, the terms of both its letters of March 2015 and 22 June 2015 (for example, in advising the requester that he could appeal both decisions to the Information Commissioner), is not only confusing but incorrect, given that QQI had stated its intention to apply the provisions of section 38 and consult with affected third parties on both occasions. QQI wrote again to the original requester and the applicant on 30 September 2015, and referred to what may be interpreted as an internal review decision, to grant the original requester access to records, following third party consultation under section 38.

Guidance to public bodies on the application of section 38 to a request is provided by the Central Policy Unit (CPU) at the Department of Public Expenditure and Reform. In this regard, the CPU guidance note 8 states that formal third party consultation under section 38 cannot occur at the internal review stage and that "the third party does not have the right to appeal your [internal review] decision directly to the Information Commissioner". In this regard, section 22(1)(g) of the FOI Act provides for a review by the Commissioner of an original decision on a request to which section 38 applies. In addition, section 21(1)(a) of the Act provides for an internal review by a head of a public body of a decision to refuse to grant an FOI request "(other than a request to which section 38 applies)".

However, even where QQI made the decision to consult with affected parties on 22 June 2015, this was not in keeping with the provisions of section 38(2) of the FOI Act. As mentioned above, section 38(2) provides that an FOI body shall, not later than 2 weeks after receipt of the request, cause affected third parties to be notified of the request. In effect, this means that having received a request on 26 April 2015, QQI was obliged to notify the affected third parties in this review no later than 12 May 2015. However, as stated earlier in this decision, QQI did not begin the consultation process until 13 August 2015.

Accordingly, I find that on the basis that it did not adhere to the statutory time limits, QQI was not in compliance with the provisions of section 38(2), concerning those records affecting the interests of the applicant as a third party.

I am mindful of the length of time it has taken QQI to respond to the original requester and to apply the provisions of section 38 to this decision. It is most unfortunate that the requester's right of access has not yet been properly considered owing to the flaws in the section 38 process. However, I consider that the section 38 requirements were not applied correctly in this case and that accordingly, the Commissioner's jurisdiction to conduct a review is undermined.

Therefore, following careful consideration, I find that the decision of QQI should be annulled. The effect of this is that the section 38 aspects of the original decision must be put aside and QQI will have to conduct a new, first instance decision making process in which it can apply the requirements of the Act correctly.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of QQI in the matter and direct that QQI conducts a new decision making process which complies with the requirements of the Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator