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Section 29 of the FOI Act and the involvement of Third Parties - Commentary (May 2007)

Freedom of Information (FOI) Acts 1997 - 2003

Section 29 of the FOI Act and the involvement of Third Parties - Commentary (May 2007)

  • Introduction
  • Who is a Third Party?
  • What does the FOI Act say? - section 29 in brief
  • When should you notify Third Parties?
  • How should you notify Third Parties?
  • Common pitfalls and problems
  • Third Parties and the Information Commissioner's Review
  • Third Party rights where section 29 does not apply?

Introduction

Section 29 of the FOI Act deals with procedures in cases where a decision to release certain information in a record has potential to affect the interests of a third party. This is a complex provision and its operation can give rise to difficulties and confusion for public bodies, requesters and third parties.

Section 39 of the FOI Act allows the Information Commissioner to "prepare and publish commentaries on the practical application" of any provision(s) of the Act, including commentaries based on this Office's experience of carrying out reviews.

This particular commentary is aimed primarily at FOI decision makers. Advice and guidelines - published as CPU Notice 13 - are already available from the Central Policy Unit of the Department of Finance and in this Office's section 16 manual. This commentary is intended to complement such material.

No official figures are available on the extent of the usage of the section 29 mechanism; it may be that, for many public bodies, it rarely arises in their FOI decisions. However, where notification to third parties is found necessary, it is vital that the provisions of the FOI Act are properly applied.

There is little that is new in this commentary. From what we have seen in the Commissioner's Office of the operation of section 29, it seems that a "back to basics" approach to this often misunderstood provision is what is needed. This guidance note is not a comprehensive statement on the operation of section 29 nor does it purport to give legal advice on the matter.

Who is a Third Party?

Requesters under FOI often seek access to records containing information about individuals or entities other than themselves. We generally refer to such content as "third party information". Section 29 does not, in fact, mention "third parties"; neither is the term defined in the FOI Act. Often, identification of the third party will depend on the context of a record and the exemption being considered. For instance, disclosure of business information is unlikely to involve third party personal information but may affect third party commercial interests. Third parties are normally taken to include an individual, group, organisation or company (whether incorporated or not) other than the person making the request or a public body as defined for FOI purposes. Third parties who can be involved in the FOI process include private nursing home/crèche owners, employers who have provided job references and tenderers for the supply of goods and services to public bodies.

What does the FOI Act say? Section 29 in brief

The first thing to stress about section 29 is that it applies only in exceptional cases where specific conditions are met - it has no application in the majority of cases involving third party information. Secondly, it does not provide for a third party to have any kind of veto over the release of records. In short, it is a notification requirement; it is not a mechanism through which someone's consent to the release of records is sought.

For ease of reference, the full text of section 29 (as amended by the 2003 Act), is reproduced at Appendix A. Its key provision (also contained in the definitions in section 2(1) of the FOI Act) sets out when a request is one to which section 29 applies -

"29.- (1) In this section "a request to which this section applies" means a request under section 7 to which section 26(3) or 27(3) applies or to which section 28(5) applies and which, apart from this section, would fall to be granted. "

What this means is that we are dealing exclusively with cases where the decision maker forms the view that a record is exempt from disclosure because information in it is -

  • obtained in confidence - section 26(1)(a) or
  • commercially sensitive - section 27(1) or
  • personal information relating to someone other than the requester - section 28(1) but
  • on balance, the record falls to be released in the public interest (subject only to considering the views of the person who gave the information or to whom the information relates).

When should you notify a third party?

The requirement to notify is triggered when the request is one to which section 29 applies. This rules out all instances where, in the decision maker's opinion, the information in the record fails to qualify for exemption under the FOI Act (i.e. where the decision maker is satisfied that the information was not obtained in confidence/is not commercially sensitive/is not the personal information of a third party). It further excludes cases where the decision maker considers that the record is exempt under sections 26, 27 or 28 and is satisfied that, on balance, the public interest is better served by refusing rather than granting the request. The section 29 notification mechanism should be invoked only where release in the public interest is contemplated.

Of course, there can be no question of section 29 applying where the exemptions at issue do not include sections 26, 27 or 28. Indeed, even where sections 26, 27 or 28 are being considered but refusal is found to be justified under other exemptions, it is the case that the request is not one to which section 29 applies. This is because the request does not fall to be granted but for the requirement that the section 29 procedures be followed. An example of this would be where personal information relating to a person other than the requester was contained in a record which the decision maker also considered to be exempt under section 22(1)(a) - legal professional privilege. Even if the decision maker came to the conclusion that the public interest in release outweighed the public interest in upholding the individual's right to privacy, the fact that the request would be refused under section 22(1)(a) in any event places it outside of the reach of section 29.

In a request involving several sections of the FOI Act, where some of the records within the scope are unaffected by section 29, it is normally best to separate those from the records the subject of section 29 notification. The "normal" FOI decision making process can then be followed in relation to the batch of records which does not require section 29 notification.

How should you notify a Third party?

Requirements and Timing

Having identified when notification is required, section 29 lays down detailed obligations on public bodies as to the form and timing of their contacts with affected third parties. The specific provision that the notification must be made in writing means that making telephone contact with a relevant person - although it may appear to be more efficient - does not, in the absence of a formal communication in writing, comply with section 29. Neither is taking account of a third party's position, as established through previous contact with him or her in connection with similar type records, enough to satisfy the notification requirements.

The making of informal contact with third parties outside of section 29 is a separate matter dealt with below.

The notification should normally take place within 2 weeks (10 working days) of the receipt of the FOI request. This means that early identification of third party information and consideration of exemptions and public interest overrides under sections 26, 27 or 28 is essential. While the time limits are tight, the legislature may have been anxious to ensure that the requester's right of access to a record - which would be granted but for the necessity to invite a third party's views - should not be compromised by undue delay at this stage.

What should the notification letter say?

The form of notification to the third party is very important. Section 29 provides that the notification should tell the person that, apart from section 29, the request falls to be granted in the public interest. It would, therefore, be misleading to write to a third party implying that the decision maker had formed no opinion on the matter and was merely considering whether the third party would prefer if the information would not be disclosed.

The CPU "Step by Step" Guide (CPU Notice 13) includes a sample letter which decision makers may use. It provides that the records at issue be either described or copies attached so that the third party can identify what information they have given to the public body or what information relates to them. It is useful also to include the text of the relevant exemption(s). The suggested notification also allows for the listing of the public interest arguments for and against release. While this listing is not a requirement of section 29, it does inform the third party of the decision maker's thinking and reinforces the fact that a decision to release in the public interest is what is at issue. After all, the third party would not have a statutory right to make submissions unless release of an otherwise exempt record in the public interest was being contemplated.

The notice should stress the importance of the third party providing clear and specific information together with any supporting evidence relating to any harm claimed to result from disclosure of his/her confidential, commercially sensitive or personal information.

Unfortunately, we find that many public bodies choose not to use the CPU model and that there is little consistency in the type and accuracy of the notifications used. Requesters and third party appellants cannot be expected to have a detailed knowledge of what is a complicated and technical piece of legislation. They are entitled to expect that correspondence from public bodies under the FOI Act reflects comprehensively the relevant provisions of the Act in a way which will allow them to take a fully informed view on how to proceed.

Should the identity of the parties be revealed?

The FOI Act is silent on whether the identity of the requester should be disclosed to the third party and whether the latter's identity should be disclosed to the requester. In Ireland as in other FOI jurisdictions, this is a question which has been debated without the emergence of a definitive recommendation.

The Information Commissioner agrees broadly with the Department of Finance's CPU Notice 13 on this issue. This points out that decision makers should exercise discretion as to whether to reveal the identity of the requester. Generally, this Office has taken the view that, since release under FOI is release to the world at large, the identity of the requester is irrelevant. Furthermore, in considering an FOI request, the reason or motive of the requester must be disregarded except in very limited circumstances so that the question of who is seeking access to a record should not generally be a consideration. Furthermore, in cases involving sensitive personal information, it could be inappropriate to disclose the identity of the requester.

Even more starkly, the disclosure to a requester of the identity of a third party whose personal information is in a record may well be equivalent to disclosure of exempt material which is specifically prohibited by the FOI Act. As regards telling the requester the name of the person being notified under section 29 is concerned, decision makers should exercise caution in disclosing such information - especially where confidential or personal information is involved. In the case of commercial information, the identity of the relevant parties will sometimes be self-evident where, for example, an unsuccessful tenderer is seeking access to records relating to the company to which a public contract has been awarded.

The Decision

Having considered the third party's input (if any), the decision maker must decide whether to grant or refuse the request. Both the requester and the third party must be informed of the decision and of the right of appeal (application for review) directly to the Commissioner normally within 10 working days.

It is important to stress that once a record has been the subject of formal section 29 notification, there is no right of internal review for the requester or the third party.

Cases which go to Internal Review

It may occasionally be the case that an internal reviewer will decide, contrary to the position adopted by the first decision maker, that the public interest requires the setting aside of one or other of the exemptions at sections 26, 27 or 28. In such cases there will not have been any section 29 consultation with a relevant third party as the first decision maker will have taken a different view on the public interest test. While the FOI Act contains no specific provisions on the notification of third parties where it arises for the first time at internal review stage, the requirement in section 29 that the "head" follow the notification procedure can be taken to apply to both initial decisions (section 7) and internal review decisions (section 14). This Office takes the view that the formal procedure required by section 29 should be followed where an internal reviewer considers that the record is exempt under sections 26, 27 or 28 but that the exemption should be set aside in the public interest. The basis for our position lies in fair procedures and the legitimate interest of the third party where the request is one to which section 29 applies. Clearly, the normal two week time limit for notifying third parties is unlikely to be met in such cases. However, it is important that the three week period for the notifying of the internal review decision is adhered to; otherwise, the original decision is deemed to have been affirmed under section 41(2) of the FOI Act.

Common Pitfalls and Problems

It has been the experience of the Information Commissioner from the early days of FOI that operating the section 29 mechanism correctly has proved challenging for many public bodies. This is not surprising given the tight time frame imposed by the Act which requires that:-

  • the request be examined and any fee implications checked;
  • the records be located and their potential impact on third parties [in the context of the section 26, 27 and 28 exemptions] considered;
  • the public interest test applied and relevant third parties identified and formally notified

- all within 10 working days of the FOI request coming in.

It appears from the cases examined by this Office that it is not uncommon for third parties to be formally notified in circumstances where the request is not "a request to which section 29 applies". This probably arises out of the public body's well-intentioned concern that all relevant persons should have their say before records in which they have an interest are released.

"Problem" cases which have come to my Office include:

  • Notification even where sections 26, 27 or 28 are not found to apply

The decision maker notified a successful tenderer for a public contract that certain records had been requested under FOI and that his company was being consulted under section 29. When the public body decided to grant the request, the company was informed that it had a right of appeal to the Commissioner. In fact, the decision making records showed that the public body involved had, from the start, taken the view that the information in the record did not qualify for exemption under section 27. Specifically, it was held that its disclosure could not "reasonably be expected to result in a material loss or gain to the person to whom the information relates or could prejudice the competitive position of that person..." Release in the public interest therefore did not arise. This Office had no jurisdiction to consider the third party's appeal.

  • Failure to identify relevant records or relevant exemptions

The notification to the third party failed to identify which records were the subject of the notification and which sections of the FOI Act applied. The third party believed that he had a right of appeal against the release of all of the records held including those which the public body had decided to release without invoking sections 26, 27 or 28 and which did not appear to directly affect his interests. When the case came on appeal, it was very difficult to establish the scope of the review - the records unaffected by sections 26, 27, 28 were eventually released by the public body in the normal way since the Commissioner's jurisdiction and the third party's rights were confined to those elements of the request to which section 29 applied.

  • General lack of clarity in contacts with third parties

A third party gave information to a public body in response to its advertisement for public submissions. She was notified that the record was the subject of an FOI request. She objected to such release and a decision issued refusing the request on the basis that section 26(1)(a) applied - information held in confidence. The decision letter made no reference to the public interest. The requester was informed that if he made an application for internal review of that decision, it would be considered by a more senior officer within the public body. He made such application but received no response within the time prescribed. He then applied to this Office for review. The public body gave us no indication at that stage that a third party had been notified. Subsequently the internal reviewer within the public body decided that the record fell to be released. The public body then notified the third party that she had a right of appeal against that decision. It notified the requester that the record would be withheld until the third party had a chance to appeal the decision to the Commissioner. The Commissioner did not accept the third party's application for review on the basis that the application for review did not relate to a decision specified in section 34(1) of the FOI Act i.e. it was not a request to which section 29 applied.

Third parties and the Commissioner's Review

The Commissioner's role in section 29 cases

Section 34(1)(f) of the FOI Act provides that one of the types of decisions that the Commissioner can review on application by a "relevant person" is "a decision on a request to which section 29 applies".

As the cases above illustrate, situations arise where the section 29 procedures have been defective in some way. Normally, we would not seek to go behind the section 29 notification of the public body. If there is any indication that the intention was to consult a third party because at some stage in the decision making process the records were considered exempt under section 26, 27 or 28 and release in the public interest was being considered, then we take it that the decision is one to which section 29 applies. Sometimes it is difficult to follow the public body's rationale from the documents provided and we will contact the decision maker to try to establish the background.

Whilst it seems unfair that a person's right to apply to this Office for a review of a decision would be lost as a result of a flaw in the public body's decision making process, in practice it is sometimes the case that, on any interpretation, the request cannot be treated as one to which section 29 applies. In those cases, it would be outside the Commissioner's jurisdiction to accept the application and purport to give a legally binding decision.

Burden of proof

Section 34(12) (a) of the FOI Act provides that a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the third party notified under section 29 shows, to the satisfaction of the Commissioner, that the decision was not justified. This shifts the burden of proof - which lies with the public body in all other cases - onto the person who is objecting to the release of the record. This is not to say that only the arguments raised by the third party will be considered. The Commissioner takes the view that it would contravene the purposes of the FOI Act and be inconsistent with the public interest and/or the right of privacy if she were to direct the release of sensitive information in records simply because a third party failed to raise substantial arguments to justify the setting aside of the public body's public interest decision. Nonetheless, this provision does serve to reinforce the statutory position that, apart from section 29, the request would have fallen to be granted.

Third party rights where section 29 does not apply

Informal contacts

The Commissioner encourages decision makers to make informal contacts with both requester and persons who might be affected by the release of information in a record. However, it should be made absolutely clear that such contact, usually made by telephone or email, is a completely different procedure from the statutory section 29 notification.

Sometimes the value of an informal consultation will go further than the courtesy of telling an individual that information affecting his/her interests falls to be released under FOI. It might be helpful, for example, when dealing with section 28, for a decision maker to check with the requester whether access to another individual's personal information in a record was actually required or whether such details could be deleted from the copy of the record to be released. In the case of a third party, discussion with the person who gave the information might help clarify a decision maker's thinking in, for example, section 26 cases in which the question of whether there was an expectation of confidence often arises. As things stand, informal contact between a decision maker and a third party does not imply that the third party has any statutory right to be heard in the FOI process; neither is any right of appeal created.

Consultation during Commissioner's Review

Section 29 of the FOI Act does not apply to the Information Commissioner. It could happen that a public body decided a record was exempt under one of sections 26, 27 or 28 and that the public interest did not warrant release. Further, it could happen that the public interest decision was taken without notification to a relevant third party. It could also happen that, on review, the Commissioner might not be convinced that the public interest favoured refusal of the record. Although section 29 is not invoked in such cases, natural justice and fair procedures require that persons who would be affected by the decision to release information should be notified. Indeed, section 34(6) of the FOI Act requires the Commissioner to notify any other person who, in her opinion, should be notified of a review. The Act also provides that a person affected may appeal that decision to the High Court.

Are Third Parties always heard?

The FOI Act does not provide for consultation with third parties in all cases where release of records might affect their interests. As explained above, the application of section 29 is restricted to particular circumstances and can properly be invoked only where the exemptions dealing with confidence, commercial sensitivity or personal information have been found to apply to the third party information and where release in the public interest is contemplated. Currently, informal consultation would appear to have no status under the FOI Act.

This can sometimes have unfair consequences for the third party. Where, for instance, a public body takes the view that information was not obtained in confidence, the person who gave the information does not have any statutory right to be heard at the initial decision stage and would not have an opportunity to dispute the status of the information unless the public body makes informal contact with the affected third party. Similarly, where business information in relation to a company is proposed for release, the company does not have any input into a decision taken that the record concerned does not contain trade secrets, financial or other information which, if disclosed, could reasonably be expected to result in material loss or prejudice to the competitive position of that company.

As seen from the examples given above, the outcome can be very unsatisfactory when a well - intentioned but flawed application of section 29 results in a third party being informed of appeal rights that the FOI Act does not actually confer. While the FOI Act does not make explicit provision for this, consultation with third parties (whose interests might be affected by FOI release of records) is warranted where such consultation is required by fair procedure. It will be a matter for individual decision makers to decide, on a case by case basis, when such consultation is necessary.