Section 16 Manual

Appendix 3: Requests to which section 29 applies - guidelines

Background

The purpose of this note is to give guidance to Office staff on how to deal with applications for review involving requests to which section 29 of the Act applies.

Section 29 is a statutory notification requirement which public bodies are required to observe in relation to the exemptions contained in section 26 (information obtained in confidence), section 27 (commercially sensitive information) and section 28 (personal information about a third party). In each of these cases the public body may grant a request if it is considered that the public interest is better served by granting than by refusing the request. However, any proposal to release such otherwise exempt material is expressed by the Act to be subject to the provisions of section 29. That section requires the public body to notify certain third parties that it is proposed to grant the request in the public interest and that the public body will consider any submissions from the third parties before deciding whether to grant or refuse the request.

What is a request to which section 29 applies ?

The term "request to which section 29 applies" is defined in section 2(1) as meaning "a request under section 7 to which section 26(3), 27(3) or 28(5) applies and which, apart from section 29, would fall to be granted". Taking section 26(3) as an example, such a request is one where, at some stage in the decision making process, 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.

Review by the Commissioner of decisions on requests to which section 29 applies

Section 34(1)(f) of the Act provides that one of the categories of decisions which the Commissioner may review on application to her by a relevant person, is "a decision on a request to which section 29 applies". Generally speaking, section 34(4)(a) provides that any such application for review must be made "not later than 2 weeks after the notification of the decision to the relevant person concerned". It follows that there are two requirements which must be met before the Commissioner can review a decision on a request to which section 29 applies. The first is that the application for review must be made by a relevant person (see below). The second is that the application must be made within the two week time limit. (The Commissioner may extend the two week time limit if he/she is of the opinion that there are reasonable grounds for doing so. Among the grounds which might be considered reasonable in some cases are force majeure situations, e.g. : prolonged illness or absence from home, but the Commissioner will decide each case on its merits and it is not possible to set out in advance a comprehensive set of grounds that will be considered reasonable).

A "relevant person" is defined in section 34(15) as the requester and, if the decision is in respect of a request to which section 29 relates, a person to whom section 29(2) applies.

Section 29(2) applies to:

  • 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, in the case of a request to which section 26(3) applies, and
  • the person to whom the information relates, in the case of a request to which section 27(3) or 28(5) applies.

Decisions where the full requirements of section 29 have been met

Section 14(1)(a) makes it clear that an initial decision ( i.e. a decision under section 8 of the Act) to refuse, wholly or partly, a request to which section 29 applies, should not be reviewed internally by the public body under that section (see section below headed 'Cases which have gone to internal review').

If, in making the initial decision, the provisions of section 29 have been properly applied by the public body then there are three possible outcomes, any one of which can arise in an application to the Commissioner.

The First Outcome (refusal of the request on public interest grounds)

The first possible outcome of an initial decision is a refusal of the request on the grounds, inter alia, that the records are exempt under section 26, section 27 or section 28 and that the public interest would not be better served by granting than by refusing the request. What will have happened in such a case is that the public body initially took the view that the records were exempt under section 26, section 27 or section 28 but that, on balance, the public interest would be better served by release; following notification to some party under section 29(2), the public body changed its mind.

In such cases, the requester does not have any right to internal review under section 14 of the Act. If dissatisfied with the decision the requester must apply for a review by the Information Commissioner within the two week time limit. As noted earlier the Commissioner may extend the two week time limit if he/she is of the opinion that there are reasonable grounds for doing so. (See paragraphs 4.16, 4.17, 4.22 and 4.23).

Since the decision is to refuse access, it may be expected that no party consulted by the public body under section 29 will want to have the decision reviewed by the Commissioner. However, in the event of an application by the requester for a review by the Commissioner, the parties consulted under section 29 are to be treated as relevant persons for the purposes of section 34(15) and notified of the review in accordance with section 34(6).

In relation to requests to which section 26 applies, it may happen that the public body will not have consulted with a person to whom the information relates (it has a discretion not to consult). Such persons are not to be treated as relevant persons for the purposes of section 34. However, they are potentially affected parties, and the instructions at paragraphs 5.8 to 5.15 are to be followed in considering whether to notify them of the review.

The Second Outcome (refusal of the request under other exemptions)

The second possible outcome is a decision to refuse the request on grounds other than section 26, 27, or 28. This may happen if, at some stage after it commenced the notification process required by section 29, the public body decided that some other exemption applies (regardless of whether section 26, 27 or 28 also apply). Such a decision is not a decision on a request to which section 29 applies. While it is true to say that, in this case 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, such a decision is not a decision on a request to which section 29 applies. This is because it cannot be said that, apart from section 29, the request would fall to be granted.

Such a decision, if made initially, should not be accepted for review by the Information Commissioner. Instead, the requester should be advised to seek an internal review.

The Third Outcome (grant the request in public interest / grant the request as no exemption applies)

The third possible outcome is a decision to grant the request. The basis for such a decision will usually be that the record qualifies for exemption under section 26(1), 27(1) or 28(1), but that the public interest is better served by release. However, it could also happen that, in the course of the section 29 notification procedure, the public body may reconsider the matter and decide that the record does not qualify for exemption. In either case, the decision is one on a request to which section 29 applies. Any party consulted by the public body may apply to the Commissioner for a review of the decision within the two week time limit. In such cases, the requester is to be treated as a relevant person and notified in accordance with section 34(6).

In relation to requests to which section 26 applies, it may happen, as with the first outcome, that the public body will not have consulted with a person to whom the information relates (it has a discretion not to consult). Such persons are not to be treated as relevant persons for the purposes of section 34. However, they are potentially affected parties, and the instructions at paragraphs 5.8 to 5.15 are to be followed in considering whether to notify them of the review.

It is also possible that a requester could apply to the Information Commissioner for a review of a decision to grant access because s/he disagreed with the reasoning of a public body. For example, the public body might decide that section 26(1)(a) applied but that access should be granted in the public interest. The requester might not agree that section 26(1)(a) applied. The Information Commissioner will not normally accept applications of this kind since there is no dispute between the requester and the public body as to the right of access. If a third party's application for a review is accepted, the requester should be informed under section 34(6), and should be told that any submissions about the grounds of the decision will be considered in the course of that review.

Cases where the provisions of the Act have not been followed

Cases may arise in which the initial decision (i.e. the decision under section 8) is to grant access in the public interest to records considered exempt under section 26(1), 27(1) or 28(1) but the purported consultation under section 29 is deficient in some way. For example, the time limits in section 29 may not have been met or the basis of the consultation may not have been properly explained to the third parties. In line with the principles outlined above, the key concern is whether the public body, at some stage in the decision making process, 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.

Normally, Investigators should not seek to go behind a purported section 29 notification. However, where the evidence clearly indicates that the public body had already decided prior to the section 29 notification that some exemption (other than section 26, 27 or 28) applied to the record or had already concluded that the public interest would not, on balance, be better served by release, then the request should not be treated as one to which section 29 applies.

Consultations outside section 29

In some cases a public body may have contacted a third party 'informally', 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. If, the evidence clearly indicates that the only consultation undertaken was for such a reason 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 decision maker decides to release the record and bases that decision on the provisions of section 26(3), 27(3) or 28(5) then, in the absence of any other evidence to the contrary, it can be assumed that the decision maker 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 state whether or not it is based on the provisions of section 26(3), 27(3) or 28(5).

Cases which have gone to internal review

As indicated above, section 14(1)(a) makes it clear that an initial decision to refuse, wholly or partly, a request to which section 29 applies, should not be reviewed internally by the public body under that section. Cases in which a public body has wrongly accepted decisions for internal review are dealt with later in this note.

It can happen that, in arriving at its initial decision, the public body does not consider that section 26(3), 27(3) or 28(5) applies and, hence, does not consult any third parties under section 29. In such a situation, the refusal of the request may give rise to an internal review. It is possible that the internal reviewer may consider that section 26, 27 or 28 applies but that access should be granted in the public interest. In such a situation, the Act does not envisage a formal consultation under section 29. In practice, public bodies may consult informally at this stage.

If, following such a consultation, the public body decides to grant access, the Commissioner may receive an application, from a third party who has been consulted, asking for the decision to be reviewed. Whether such an application is accepted depends on why the consultation was undertaken by the public body. If the consultation was undertaken because the internal reviewer took the view that the record was otherwise exempt but that the provisions of section 26(3), 27(3) or 28(5) required its release then the decision is one on a request to which section 29 applies and the application may be accepted. 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 internal reviewer decides to release the record and bases that decision on the provisions of section 26(3), 27(3) or 28(5) then, in the absence of any other evidence to the contrary, it can be assumed that the internal reviewer 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 state whether or not it is based on the provisions of section 26(3), 27(3) or 28(5).

If the internal reviewer decides to refuse the request then regard should be had to the time limit for making an application to the Information Commissioner mentioned in the internal reviewer's decision letter. If the requester is informed that the time limit is two weeks then, in the absence of any evidence to the contrary, it should be assumed that the decision is one on a request to which section 29 applies. On the other hand, if the decision letter informs the requester that the time limit for an application to the Commissioner is six months then, in the absence of any evidence to the contrary, it should be assumed that the decision is not one on a request to which section 29 applies.

Cases wrongly accepted for internal review

As indicated above, an initial decision to refuse, wholly or partly, a request to which section 29 applies, should not be reviewed internally by the public body under section 14. However, it can happen that, in such cases, the requester is granted an internal review, in error, instead of being referred to the Information Commissioner. Normally such a matter will only come to the attention of this Office by way of an application by the requester for a review of the internal review decision. In the unlikely event that such an application is made within two weeks of the original decision, it may be accepted as an application for a review of the original decision. Where the application is made outside that period it could fall to be refused as the internal review decision in such cases is not a decision under section 14. However, in these circumstances, the Commissioner will normally exercise her discretion to admit such 'late' applications.

Request involving records to which section 29 applies and other 'non-section 29' records

Most requests involve more than one record. Cases will arise where some of the records contain information relating to a third party and will be subject to section 29 consultations, while other records within the scope of the request may not contain any information to which section 26, 27 or 28 apply. However, the public body may decide that these latter records are exempt under other section(s) of the FOI Act. In such cases the requester should be advised that they have a right to internal review of these latter records. Therefore it may arise that a public body's decision on the 'section 29' records is appealed directly to this Office within two weeks while the remaining exempt records is appealed to this Office within six months of the decision on internal review.

Back to contents