Mr Y and Dublin City Council

CourtInformation Commission
JudgeSenior Investigator
Judgment Date25 Aug 2021
Case OutcomeThe Senior Investigator found that the section 38 requirements were not applied correctly in this case and annulled the decision of Dublin City Council.
RespondentDublin City Council
Record NumberOIC-111759-W6P0Y3
Whether Dublin City Council was justified in its decision to part grant a request to which section 38 of the FOI Act applies, concerning access to records relating to a third party

25 August 2021

Background

This review arises from a decision made by Dublin City Council to part 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.
On 15 February 2021, the applicant wrote to the Council requesting records. The Council formed the opinion that the request was one to which section 38 of the FOI Act applied and undertook a process of consultation with a third party. The Council formally wrote to the third party on 11 March 2021 inviting submissions about the possible release of this information.
The Council issued its first decision on 18 March 2021 to part grant access to some relevant records. The third party made a submission to the Council on 19 March 2021, following which, by letter dated 12 April 2021, the Council informed the applicant that it had decided to part grant access to further records he had requested. The Council also informed the applicant, in both letters, of his right to an internal review. On 4 May 2021, the applicant requested an internal review of the Council’s decisions and on 13 July 2021, the Council issued a decision affirming its previous decision.

The applicant sought a review by this Office of the Council’s decision on 17 August 2021.

Preliminary matter

I note that the applicant refers to the Commissioner for Environmental Information in his application to this Office. This review is based on a request under the FOI Act, which was treated as such by the Council. Should the applicant wish to have this matter...

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