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Section 16 Manual
5.17 Cases which appear to be resolvable without a binding decision
Obviously, it will not be possible to identify all such cases at the commencement of the review, given the limited information normally available to the Investigator at that point. Indeed, in many cases, further inquiry into the matter will put the Investigator in a better position to suggest a settlement at a later stage. Nevertheless, experience has shown that, in some cases, where the public body's decision is either clearly right or clearly wrong a settlement can be achieved.
5.18 Where, following consideration of the evidence available, the Investigator is clearly of the view that the public body has misdirected itself or appears not to have taken into account a decision of the Commissioner which is directly relevant, an Investigator can at this stage make a recommendation to the Commissioner to conclude the review by way of a binding decision. Alternatively, in an effort to effect a settlement an Investigator may at his/her discretion, request that the public body reconsider its position and its attention should be drawn to whatever relevant matters it appears to have ignored in coming to its decision. The letter to the public body should explain fully the basis for the Investigator's preliminary view that the public body has misdirected itself. The public body should be offered a period of at least two weeks in which to reply to the points made by the Investigator or to make any further submissions in relation to any other matter which it considers relevant to the review. The letter should indicate that the case appears suitable for an early decision by the Commissioner and that if no reply is received within two weeks the file will be forwarded to the Commissioner with a recommendation that he/she decide the matter in line with the approach taken in the letter. If a satisfactory reply is not received within the two week period the case should be referred to the Commissioner with a recommendation for a decision.
5.19 In some cases, a public body will not accept that its decision was wrong and will put forward additional facts and arguments in support of its decision. In such cases, the additional material presented by the public body should be fully considered. If, having done so, the Investigator revises his/her initial view that the public body's decision was wrong then the instructions in paragraphs 5.25 and 5.32 should be followed. At the same time, the Investigator may decide that further investigation is warranted in which case the instructions in paragraph 5.28 should be followed. Alternatively, the Investigator may decide that the review is capable of being concluded at this point in which case the instructions in section 6 should be followed.
5.20 Where the public body's decision appears to be fully justified and the submissions of the requester (if any received) have been considered, then the Investigator may at this stage make a recommendation to the Commissioner to conclude the review by way of a binding decision. Alternatively, in an attempt to effect a settlement, the Investigator may at his/her discretion contact the applicant explaining why the decision of the public body is considered to be correct. The Investigator should explain the Commissioner's role and, if appropriate, should make it clear that the Commissioner's remit does not extend to resolving disputes not within the terms of the FOI Acts. The Investigator should also set out clearly the scope of the review and should indicate that the Investigator intends to refer the file to the Commissioner with a recommendation for a binding decision along the lines described. However, the applicant should be given a period of at least two weeks in which to make any submission in relation to the matters raised by the Investigator or in relation to any other matter which s/he considers relevant to the review. Any such submission should be fully considered. If, having done so, the Investigator revises his/her initial view that the public body was correct to refuse access then the Investigator should consider contacting the public body.
