A third party and the Health Service Executive

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 05 October 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 HSE.
• Court: Information Commission
• Record Number: 150279
• Respondent: The Health Service Executive

Whether the decision of the HSE, to which section 38 of the FOI Act applies, to partially grant a request for records concerning payments made by the HSE to a number of companies, 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 HSE 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 16 November 2014, the original requester submitted a clarified FOI request to the HSE in which he requested access to records relating to payments made by the HSE to a number of companies. The HSE replied to the original requester on 12 December 2014 and stated that under the provisions of section 14(1) of the FOI Act, it was extending the period for consideration of the request by four weeks. The HSE then wrote to the original requester on 16 January 2015 and 16 July 2015 in an attempt to address some of the records at issue. The HSE issued its original decision on the matter on 17 August 2015.

However, prior to its decision, the HSE wrote to the applicant on 21 January 2015 and again on 25 June 2015. In its letter of 25 June 2015, the HSE advised that it was consulting the applicant under the provisions of section 38 of the FOI Act. The HSE stated that it was consulting the applicant as an affected third party, under section 38, about a number of records which affected the applicant's interests. The applicant was then advised of the decision of the HSE on 17 August 2015 and...