Section 16 Manual

5.3 Notice under section 35

Both section 8 and section 14 of the Act oblige a public body which is refusing a request, whether wholly or partly, to give the requester a statement of the reasons for the refusal and, other than in cases where the provisions which permit a refusal to confirm or deny the existence of a record are being invoked, to specify

  • any provision of the Act pursuant to which the request is refused,
  • the findings on any material issues relevant to the decision, and
  • particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

5.4 To comply with the terms of these sections it is not sufficient for a public body to simply paraphrase the words of the particular exemption. A statement of reasons should show a connection, supported by a chain of reasoning, between the decision and the decision maker's findings on material issues. Where the Commissioner considers that the statement of reasons is inadequate, section 35 of the Act requires that he/she direct the head of the public body to furnish a statement, both to the requester and to the Commissioner, containing any further information in relation to the above matters that is in the power or control of the head. When copies of the decision by the public body have been received the Support Unit, and following receipt of a case file, the Investigator, should consider whether a direction under section 35 is required.

5.5 In most cases, it is desirable that the Investigator examine the records in dispute as part of the initial assessment of the case. However, this is not always necessary. If a schedule of records has not been provided by the public body then, other than in cases involving no more than a few records, Investigators or as appropriate the Support Unit should seek from the public body a schedule listing the records sequentially by number and containing the following information :

  • the date of the record,
  • the title of the document or the name of its author or addressee,
  • a brief description,
  • the exemption claimed.

5.6 In the case of released records it is sufficient for the schedule to show the number of the record (provided numbered copies of the records are provided) and indicate that it has been released.

5.7 In each case, the Investigator should check at the outset of the initial assessment whether the point at issue has been decided already in another case or is currently under consideration in another case. The form of the check is at the discretion of the Investigator but will normally involve a search of the Reference Database or discussion with a Senior Investigator.

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