Section 16 Manual

5.8 Notification of other affected persons

Section 34(6) requires the Commissioner to notify the following parties of her proposal to review a decision of a public body :

  • the head of the public body,
  • the requester,
  • in the case of a decision in respect of a request to which section 29 relates, a person to whom section 29(2) applies, and
  • any other person who, in her opinion, should be notified .

5.9 The instructions in paragraphs 5.10 to 5.13 should be followed in deciding whether to notify a party other than the public body, the requester or a person to whom section 29(2) relates, of the proposal by the Commissioner to review a decision of a public body. It is desirable that such notification be given as early as possible in the review.

5.10 Section 42 provides that a party to a review or any other person affected by a decision of the Commissioner may appeal against that decision to the High Court on a point of law. Section 34(10) requires the Commissioner to notify her decision, inter alia, to any person to whom, in her opinion, it should be notified. Clearly, any person who might be affected by her decision should be notified, thus giving the person an opportunity to exercise his/her rights under section 42. Thus, a guideline for deciding whether or not to notify a third party under section 34(6) is whether that person is likely to be affected by the decision of the Commissioner.

5.11 This means that, having accepted an application to review a decision to refuse access to a record which may contain third party information, it is necessary to

  • identify all third party information,
  • decide whether it is necessary to notify parties ( "third parties") other than the public body, the requester or a person to whom section 29(2) applies (the latter must be informed in accordance with the instructions in paragraph 4.29 above).

5.12 As a general rule it would not be desirable for the Commissioner to decide to release information which might affect someone's interests without that person's knowledge.

In large measure the decision as to whether to notify a third party must be based on the Investigator's initial judgement as to the likely outcome of the review insofar as it concerns third party information. If the decision of the public body appears to be correct on the face of it, there is no need to notify the third party at the start of the review.

5.13 In some cases it will not be apparent at the outset that the records contain information furnished by a third party or about a third party who may need to be notified of the review by the Commissioner. Where this comes to an Investigator's attention at a later stage in the review, the party should be notified without further delay.

The Commissioner's attention should be drawn to cases where third parties are mentioned and it is decided that they are not affected by a decision.

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