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Section 16 Manual
5.23 Other cases
In many cases, the Investigator will have insufficient information to enable a reasonable judgement to be made as to the likely outcome of the review. In such cases the Investigator should consider asking the public body, or as appropriate, the applicant to address the specific issues arising out of the initial assessment within at least two weeks and inviting any further submissions which it may consider relevant to the review. The purpose of this is to try as far as possible to elicit all the relevant facts from the public body or requester and, in the case of the public body, to gain a full understanding of the reasons why the public body is claiming particular exemptions. The Investigator will also ask for such additional factual material as the he/she considers may be relevant to the decision.
5.24 In writing to the public body, its attention should be drawn to section 34(12)(b) which provides that a decision of a public body to refuse to grant access shall be presumed not to have been justified unless the public body concerned shows to the satisfaction of the Commissioner that the decision was justified.
5.25 If, following consideration of the evidence available, it appears that part of the decision is clearly correct, then the Investigator may proceed to make a recommendation to the Commissioner to conclude the case by way of a binding decision. However, the Investigator should consider whether or not to inform the applicant accordingly and explain the basis for his/her view. ( In considering whether to inform an applicant, the Investigator should consider whether the public body has raised a matter which might be influential in persuading the Commissioner to uphold the decision of the public body - see also paragraph 5.32). The Investigator should indicate that in the event that the Commissioner is required to make a binding decision, the Investigator will be making a recommendation along these lines. In relation to the rest of the decision, the Investigator should state that the Office is in correspondence with the public body regarding its claim(s) to exemption. The requester should be given an opportunity to make a submission on the matters raised by the Investigator or on any other matters which he/she considers relevant to the review.
5.26 Where the review is of a decision to grant a request to which section 29 applies, the applicant's attention should be drawn to section 34(12)(a) which provides that such a decision is presumed to have been justified unless the applicant shows to the satisfaction of the Commissioner that the decision was not justified.
5.27 In cases where the public body refuses the request on the grounds that records cannot be found after all reasonable steps to ascertain their whereabouts have been taken, the guidelines in Appendix 2 should be followed.
