Mr X and the Department of Transport, Tourism and Sport

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 10 July 2015
• Case Outcome: The Senior Investigator found that the section 38 requirements were not applied correctly in this case to such an extent that the Commissioner had not jurisdiction to deal further with it. She annulled the decision of the Department
• Record Number: 150175
• Court: Information Commission
• Respondent: Department of Transport, Tourism and Sport

Whether the decision of the Department, to which section 38 of the FOI Act applies, to partially grant a request for records concerning the proposed re development of Páirc Úi Chaoimh, Cork was justified under the FOI Act

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 the Department to partially 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 14 April 2015, the original requester wrote to the Department and sought access to records relating to the proposed redevelopment of Páirc Uí Chaoimh. The Department 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 applicant). The Department's decision maker wrote to the applicant on 5 May 2015 and stated that it was considering release of certain information. The applicant was invited to highlight any particular sections he felt should not be released and provide "any rationale he may have for the exclusion of this material." He was advised that the Department may be required to release the records under FOI but that he had a right of appeal to the Commissioner. In response, the applicant outlined arguments as to why the records should not be released. The Department decided to partially grant the records, and the applicant and the original requester were notified of the decision on 29 May 2015.

The applicant wrote to the Commissioner on 10 June...