Section 16 Manual

4.29 Notification of acceptance of application

As soon as it has been decided to accept an application for review, it is necessary to notify:

  • the public body
  • the requester
  • the applicant (if the application is in respect of section 17 or 18)
  • in the case of a decision in respect of a request to which section 29 relates, any person to whom section 29(2) applies (see 4.30).

4.30 A decision in respect of a request to which section 29 relates means a decision in respect of a request for access to records which contain information obtained in confidence, commercially sensitive information or personal information where the public body has formed the view (subject only to receiving the views of the party who gave the information to the public body and/or a party to whom the information relates) that the public interest would, on balance, be better served by granting than by refusing to grant the request. A person to whom section 29(2) applies means:

  • in the case of a request to which section 26(3) applies, the person who gave the information to the public body and, if the public body considers it appropriate, the person to whom the information relates, and
  • in the case of a request to which section 27(3) or 28(5) applies, the person to whom the information relates.

The key concern here is whether the public body, prior to notifying a person to whom section 29(2) applies, had come to the view that the record was exempt by virtue of section 26(1), 27(1) or 28(1) but that by virtue of section 26(3), 27(3) or 28(5) it should be released because, on balance, the public interest was better served by doing so.

If, on the other hand, the consultation was undertaken for some other reason, for example, with a view to seeking the consent of the party concerned or with a view to putting the party on notice that information about them was about to be released, then any application by a third party objector should be refused.

In practice, determining why a consultation was undertaken is not always straightforward and even a perusal of the correspondence may not resolve the matter but the following guidelines should be followed. If the public body decides to release the record and bases that decision on the provisions of section 26(3), 27(3) or 28(5) then it can be assumed that the public body had formed this view prior to any consultation and, hence, that the decision is a decision on a request to which section 29 applies. In cases where the rationale for the decision is not apparent from the decision letter, the public body should be asked to confirm whether or not it is based on the provisions of section 26(3), 27(3) or 28(5). (See also Appendix 3)

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