A third party and Department of Arts, Heritage and the Gaeltacht

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 06 October 2015
• Case Outcome: The Senior Investigator affirmed the decision of the Department to grant access to records.
• Record Number: 150174
• Court: Information Commission
• Respondent: Department of Arts, Heritage and the Gaeltacht

Whether the decision of the Department to which section 38 of the FOI Act applied, to grant access to records relating to the capture and release locations of hares 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

Background

This review arises from a decision made by the Department 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 exemption 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 9 February 2015 the Department received a request from the original requester under the FOI Act for access to records concerning hare coursing meetings in Ireland, to include information about returns to the Department detailing the capture and release of hares. The Department's decision maker formed the opinion that sections 35 and 36 of the FOI Act applied to some of the records coming within the scope of the request, as their release could potentially disclose confidential, or commercially sensitive information relating to a third party. The decision maker concluded however, that the request was one to which section 38 of the FOI Act applied and undertook a process of formal consultation with the applicant in this review, on the basis that the Department was considering whether the records should be released in the public interest.
In his response to the Department, the applicant opposed release and stated that he considered information in the records to be commercially sensitive: The applicant did not comment on the Department's position insofar as it related to the provisions of section 35. The Department issued a decision on 8 June 2015 and informed the applicant that it had decided to grant access to the records, including those details which related to the locations of where hares were captured and released. On 11 June 2015, this Office received an application from the applicant for a review of the Department's decision.
I consider that the review...