An Organisation and Department of Finance

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 08 April 2022
• Case Outcome: The Senior Investigator affirmed the Department's decision to grant access to the submission.
• Court: Information Commission
• Respondent: Department of Finance
• Record Number: OIC-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 this case, the onus rests with the Organisation of satisfying this Office that the Department’s decision to release its submission was not justified.

In its application for review to this Office, the Organisation stated that the requester refused to be identified and it argued that this supported its view that the information in the submission should remain confidential. It is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Moreover, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard a requester’s reasons for an FOI request and any belief or opinion of the FOI body as to what are the reasons of the requester for the request. This means that the question of the original requester’s identity and any beliefs as to his/her motives for seeking the records at issue can play no role in my decision making, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.

Analysis and Findings

Section 35 - Information obtained in confidence

Both the Department and the Organisation have indicated that they consider the record at issue...