Y College and Quality and Qualifications Ireland (FOI 2014)

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 19 October 2016
• Case Outcome: The Senior Investigator annulled QQI's decision. She found that the information in the report to which section 36(1)(b) and section 37(1) applied should not be released in the public interest.
• Record Number: 160076
• Court: Information Commission
• Respondent: Quality and Qualifications Ireland

Case Number: 160076

Whether QQI's decision to release, in the public interest, certain information in a record concerning inspection reports, was justified. This was a request to which section 38 of the FOI Act applied.

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 FOI 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 FOI 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 FOI body, may apply directly for a review of that decision to this Office.

The case has a complicated background which is quite difficult to set out clearly owing to the various errors and uncertainty around the handling of the request. This application for review arose as a result of the Commissioner's decision on Case No. 150346 (available at www.oic.ie), which found that the section 38 requirements had not been applied correctly. The Commissioner annulled the decision of QQI and directed it to undertake a fresh decision making process in accordance with the requirements of section 38.

QQI received an FOI request from the original requester on 26 November 2014, for access to "copies of inspection/recognition site visits and reporting you may have" on the accreditation and co-ordination of English language services. In dealing with the earlier review before this Office, QQI indicated that the original request had been received on a different date. Documentary evidence has now been provided which shows that the date of 26 November 2014 is the correct date. QQI indicated that it made a decision on the original request in March 2015, to refuse the request on the basis that section 15(1)(c) of the FOI Act applied.

Further to that, the original requester submitted an email to QQI on 25 March 2015, in which he sought access to "Copies of inspections carried out by your organisation in the last year, announced and unannounced". I note that 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. On the basis of the evidence now available to me, I am satisfied that this email of 25 March 2015 should be regarded as a new FOI request.

The FOI Act provides for a right of access to records held by an FOI body at the date on which the request is made, and an inspection report (the report) in relation to the applicant was one of those identified as relevant to the FOI request. Further to the Commissioner's decision referred to above, QQI wrote to the applicant in December 2015 and advised it of QQI's view that the report, which contained commercially sensitive and personal information relating to the applicant and some of its employees, should be released in the public interest. The applicant objected to this and made a submission to QQI. QQI issued its decision on 8 February 2016, informing the applicant that it had formally decided to grant access to the report.

The applicant wrote to the Commissioner on 19 February 2016 seeking a review of the decision of QQI, in accordance with the provisions of section 38 of the FOI Act.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of QQI, to the content of the records, and to the provisions of the FOI Acts. The original requester was invited to but did not make a submission. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The scope of this review is to determine whether QQI's decision to release, in the public interest, information to which sections 36 and 37 of the Act applied, was justified. I must consider whether the report is exempt from release on the basis that section 36 and/or 37 applies, and, if so, whether the public interest would be better served by release of that information.

Preliminary Matters

I appreciate that the operation of section 38 of the FOI Act can be complex and that it places heavy demands on FOI bodies as regards time limits. However, the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform publishes useful guidance and sample letters in relation to the operation of the FOI Act (including section 38) and it is difficult to understand why an FOI body would not have regard to such guidance or use the templates where relevant.

I note that the report at issue in this review refers to third parties, other than the applicant, who might be affected by the release of the report. There is no indication that QQI notified these parties of the request or of its decision on the matter, as it should have done in accordance with section 38. If this is the case, that proposed release of information in the public interest would truly affect their interests, these potentially affected third parties have not been afforded the right to seek a review of the QQI decision in accordance with section 38. In view of my decision as set out below, I did not consider it necessary to seek the views of these third parties.

Section 22(12)(a) of the FOI Act provides that where a decision to grant a request to which section 38 applies is being reviewed by the...