An Organisation and Department of Finance

CourtInformation Commission
JudgeSenior Investigator
Judgment Date08 April 2022
Case OutcomeThe Senior Investigator affirmed the Department's decision to grant access to the submission.
RespondentDepartment of Finance
Record NumberOIC-117408-G6V7B5
Whether the Department was justified in granting access to a submission to a public consultation process on the potential capping of the cost of licensed moneylenders

8 April 2022

Background

This review arises from a decision made by the Department to grant 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 was obtained in confidence, is commercially sensitive, or is personal information relating to third parties, respectively) but that the records 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.

A request was made to the Department on 7 November 2021 for all submissions on the public consultation on the potential capping of the cost of licensed moneylenders and a copy of any report compiled for the Minister as a result of the consultation process.

On 12 November 2021, the Department informed the applicant organisation (the Organisation), that it was considering the release of its submission on the ground that the public interest would, on balance, be better served by granting rather than refusing the request.

On 25 November 2021, the Organisation wrote to the Department objecting to the release of the record. On 3 December 2021, the Department notified the Organisation of its decision to release the record. On 16 December 2021, the Organisation sought a review by this Office of the Department’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 to the submissions made by the Organisation and by the Department. I have also had regard to the contents of the record concerned. The original requester was invited to make a submission if he wished but he has not done so. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to grant access to the Organisation’s submission to the public consultation process on the potential capping of the cost of licensed moneylenders.

Preliminary Matters

It is important to note that decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified. This means that in...

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