Ms. X and Quality and Qualifications Ireland

JudgeElizabeth Dolan Senior Investigator
Judgment Date19 November 2015
Case OutcomeThe 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 QQI.
CourtInformation Commission
Record Number150343
RespondentQuality and Qualifications Ireland
Whether the decision of QQI, to which section 38 of the FOI Act applies, to grant a request for records concerning inspection reports on the accreditation and co-ordination of English language services, was justified
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

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 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.

QQI confirmed to this Office that it received an FOI request from the original requester on 26 April 2015, for access to records relating to copies of inspection reports carried out by QQI on the accreditation and co-ordination of English language services. QQI also confirmed that it made a decision on the original request in March 2015. QQI replied again to the original requester on 22 June 2015 and stated that it had "made a final decision to grant [the] request subject to section 38 of the 2014 [FOI] Act."

QQI wrote to the applicant, as an affected third party, on 13 August 2015. QQI then issued a further letter on 30 September 2015 to both the original requester and the applicant and stated that it had "formally decided to grant the [original] requester access to the records..."

The applicant wrote to the Commissioner on 13 October 2015 seeking a review of the decision of QQI.

Analysis and Findings

Section 38
Section 38(2) provides that a public body shall, not later than two weeks after the receipt of an FOI request, notify any relevant third parties of the request and that, apart from this

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