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Case number: 160574

Whether EirGrid was justified in its decision to grant a request to which section 38 of the FOI Act applies, concerning access to records relating to the applicant

Conducted in accordance with section 22(2) of the FOI Act by Ms Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

This review arises from a decision made by EirGrid to 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 20 September 2016, EirGrid received a request seeking access to records relating to the applicant. Eirgrid sought clarification from the requester as to the nature of the records sought and received that clarification on 23 September 2016. The request was acknowledged by Eirgrid as having been received on 23 September 2016. During the processing of the request, EirGrid formed the opinion that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with the applicant. EirGrid formally wrote to the applicant on 1 November 2016 inviting a submission on the possible release of certain records. The applicant made a submission to EirGrid on 22 November 2016, following which, by letter dated 19 December 2016, EirGrid notified the applicant of its decision to release some of the requested records, either in whole or in part. The applicant sought a review by this Office of that decision on 21 December 2016.

Analysis and Findings

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, while the clarified FOI request was received on 23 September 2016, the records received by this Office indicate that EirGrid did not formally notify the applicant, as an affected third party, until 1 November 2016, more than 5 weeks after receipt of the request. Under section 38(2), the applicant should have been notified by 7 October 2016 at the latest.

In a submission to this Office, EirGrid informed this Office that it applied an extension of 2 weeks provided for under section 38(3) of the Act before it formally consulted the applicant. Section 38(3) provides for an extension of the two week period for notifying third parties by a further two weeks where the number of records to be considered and/or the number of third parties that must be notified is such that compliance with the initial two week period is not reasonably possible. In such circumstances the requester must be notified of the extension and of the reasons for the extension prior to the expiry of the initial two week period. However, I understand that EirGrid did not notify the requester within the prescribed two week period that it was extending the period by a further two weeks. Furthermore, even if it had done so, it is clear that the notification that issued on 1 November 2016 would have been outside the extended time limit provided for in the Act.

On this point, I note that Eirgrid suggested that it had notified the applicant within four weeks, based on a date of request of 29 September 2016. However, while the request was acknowledged on 29 September, it was received on 23 September, and the four week period would have started from that date.

I further note that 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. The applicant made a submission to Eirgrid on 22 November 2016. Therefore a decision should have issued to both the requester and the applicant by 6 December 2016 at the latest. However a decision did not issue until 19 December 2016, some 4 weeks after the receipt of the submission.

In correspondence with this Office, EirGrid indicated that at the point where it had received the applicant's submission, it utilised the provision under section 14(1) of the Act to extend the decision making period by a further four weeks in order to prepare the records in response to the request. It stated that it wrote to the requester on 21 November 2016 extending the period for a decision to issue until 19 December 2016. EirGrid was mistaken in its belief that it was entitled to extend the decision making period under section 14 at that stage in the section 38 notification process. The provision in section 14 of the Act to extend the time for consideration of FOI requests does not apply in a case requiring formal consultation under section 38 of the Act. Time requirements for processing requests to which section 38 applies are as set out in that section. Therefore, I find that EirGrid's decision dated 19 December 2016 did not issue within the time-frame provided for in section 38.

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 expect that Eirgrid is aware that the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform has published on its website, www.foi.gov.ie, a manual for FOI decision makers which contains a step by step guide to the application of section 38, including some useful letter templates. Furthermore, the OIC procedures manual, available at www.oic.ie, also contains, at Appendix 4, a useful commentary on the section 38 provisions.

I am concerned at the delay that has arisen for both the original requester and the applicant in receiving a binding determination on the FOI request as a result of EirGrid's failure to correctly apply the section 38 requirements. However, as I do not consider that the section 38 requirements were applied correctly in this case, regretfully it is my view that the decision of EirGrid should be annulled and I find accordingly.

Decision

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