Given the breadth of interaction by public bodies with the community, they inevitably hold records containing sensitive business, personal or confidential information. The Freedom of Information Act recognises the importance of protecting such information in the normal course from third party access.  Specific protections for this purpose are set out at sections 26, 27 and 28 of the Act.

Where, exceptionally, sensitive information in these categories is under particular consideration for release in the public interest, the Act imposes a number of safeguards so as to ensure the rights of the third party involved (i.e. the business or individual to whom the information relates) are fully respected.  At all stages of the FOI process, the Act should be interpreted in a manner which is consistent with the right to privacy provided for both in the Constitution and in the European Convention on Human Rights, 2003.

The purpose of this note therefore is to briefly set out for decision makers the steps involved in processing FOI requests which contain third party information (i.e. sensitive business, personal or confidential information of someone other than the requester).

Step 1 Examine the Records - Immediately on receiving the request

·        Examine the records coming within the scope of the FOI request to determine if they contain third party information.

·        Separate the records containing third party information from the other records coming within the scope of the request.  The other records, not impinging on third parties should be processed as an FOI request in the normal way

·        Talk to the requester to confirm if third party details contained in the records are actually required. This must be done without disclosing the identity of the third party or details of the information involved

if the requester indicates that the third party details can be edited from the records

You may proceed to make your decision (Great care should be exercised to ensure that the edited version of the record does not disclose third party information, either directly by virtue of the contents of the records or indirectly by virtue of the context in which they are released) 

BUT if the requester confirms that he or she wishes to obtain the third party information,

Proceed to Step 2   

Step 2 Carefully consider the information involved so as to satisfy yourself as to whether or not it is exempt by virtue of being sensitive business, personal or confidential information.

For this purpose it is necessary to examine the information by reference to the relevant exemptions of the Act, Information Commissioner findings and guidance from the FOI Central Policy Unit. It is essential that you are satisfied  as to whether or not exemption may be claimed by virtue of the material involved being sensitive business, personal or confidential information. You may find it helpful in many cases, as part of such deliberations, to undertake informal contact with the relevant third party i.e. the person to whom the record relates, in the case of business or personal information, or with the supplier of the information, in the case of information given in confidence.

Please note that there may be information relating to more than one third party in a particular record e.g. information  may  be given in confidence to a semi-state body by a private company and subsequently passed to a government department.  In this scenario, both the state body and the private company may be third parties.

Where informal contacts are being undertaken they must be done within the first few days of receiving the request

Where appropriate, find out the views of the third party as to whether or not the records contain exempt information i.e. are they of the view that the information is commercially sensitive, personal or given in confidence?

Given the tight time constraints, you may have to make contact by telephone, fax or e-mail, rather than by post.  You should note carefully on your FOI file the views of the third party and where possible get those views confirmed in writing.

Even if your initial instinct is very much towards protection of the information, informal contact may often* be useful - the third party may have supporting views on the application of the exemption which would serve to reinforce your decision.  Such informal soundings may also be helpful to the internal reviewer in assessing the basis of your initial decision

* Discretion should be used here.  It would be inappropriate and distressing for a victim of crime to be contacted regarding an FOI request by the perpetrator where the facts argue convincingly against release.

Following your consideration of the material (including, where appropriate, informal contacts), you must then form a view as to whether the  records do in fact contain exempt  information which is commercially sensitive, personal or given in confidence.

If you are of the view that the records do not contain exempt information, you are then entitled to release the information without undertaking formal consultation under section 29. 

You may proceed to make your decision to release the records (This approach requires that you are fully satisfied that the information is not given in confidence, commercially sensitive or personal.  Where doubts arise, you will rarely, if ever, come to this decision without informal contacts.  This understanding should, wherever possible be confirmed in writing by the third party). 

If you are of the view that the information is exempt, the next step is to apply the public interest test so as to consider whether, on balance, the public interest would best be served by granting or refusing the records involved. Such consideration of the public interest is provisional as it occurs before seeking the formal views of the third party under section 29.

From your provisional consideration of the public interest arguments the following conclusions are open to you:

·        that you propose to refuse access to the records i.e. that both the exemption and the public interest arguments are so heavily balanced towards  protection of the records that  no information gained on consultation could change this - in such case, formal consultation will not be required.

You may proceed to make your decision to refuse the records

·        that the information is exempt but, on balance, there may be stronger public interest arguments favouring release of the information.

Proceed to Step 3

Step 3 Formal Consultation Procedures - This must be initiated within 10 working days of receiving the request.  In certain circumstances the Act provides for an extension of this period to 20 working days.  These are where the amount of records to be considered and/or the number of third parties that must be consulted is such that compliance with the initial 10 working day period is not reasonably possible.  The requester must be notified of such extension and the reasons therefore prior to the expiry of the initial ten day period. 

You have now decided that the third party information in the record is exempt i.e. that it is commercially sensitive, personal information or information received in confidence, but that public interest arguments may favour release, subject to such views on the matter as the third party may provide.

within 10 working days of receiving the request, notify the relevant third party(ies) in writing, of:

·        the request (but not necessarily the name of the requester )^*  see note at page 7

·        details of the records concerned - enclose copies of the records concerned, where possible

·        details of the exemption under consideration (it may be useful to enclose a copy of the actual exemption and the definition of “personal information”, if appropriate)

·        your preliminary view that the records should be disclosed in the public interest together with details of the public interest criteria under consideration.

·        their right to make a submission on the matter.  You may seek their views on both the reasons why they believe the information to be exempt and also any relevant public interest arguments

·        the 3 weeks deadline for making of a submission in reply to you

·        that any submission will be carefully considered before the final decision is made

·        that they will be advised of any decision to release the information

·        if the decision is to grant the request against the wishes of the person consulted, that person shall have the right to seek independent review of the decision by the Commissioner before any information is released

Identifying the appropriate person: If you are consulting with a company or organisation, it is important to identify the appropriate person to whom the notification should be addressed.

Proof of delivery: You may opt to use registered post/ courier service, etc. if you wish to be assured of receipt of the notification by the third party.  The decision maker has discretion in this regard.  Its use may, in some circumstances, have the advantage of highlighting for the third party the urgency of the matter

Advise the requester that you have initiated formal consultations and that the time for making a decision will now be extended by 3 weeks.  This may be included in the acknowledgment letter to the requester.

Step 4 Making the Decision - Within 2 weeks of receipt of submissions            (or within 2 weeks of the expiration of the time limit available to the third party)

Within 2 weeks of receipt of submissions from the third party (or within 2 weeks of the expiration of the time limit available to the third party) carefully consider such submissions as may have been received in the light of

·        the relevant exemption provision and

·        the public interest considerations

Objectively assess the likely effects of disclosure - the submissions may lead to a reconsideration of the weight previously assigned to the public interest either through a reassessment of the strength of the exemption or through identification of new public interest factors. 

·        consider the results of any other enquiries made to ascertain the public interest in disclosing or withholding the information (e.g. consultation with colleagues, FOI network, Commissioner findings, departmental policy, etc.)

·        weigh the various public interests arguments

You may proceed to make your decision

Step 5 Notifying of the Decision –

Inform the third party and the requester of the decision

If the decision is to grant the request (where the third party has objected)

Advise the third party of

Ÿ         the decision

Ÿ         his or her rights of appeal (i.e. directly to the Information Commissioner - Internal review is not available to requests involving section 29 consultation)

Ÿ         the time limit for making such appeal i.e. within 2 weeks

Advise the requester of

Ÿ         the decision and that the information must be withheld until the time for appealing to the Information Commissioner has expired

Ÿ         his or her rights of appeal (i.e. directly to the Information Commissioner)

Ÿ         the time limit for making such appeal i.e. within 10 working days

You must retain the records until this two week period has expired.  You cannot proceed to release the records without first checking with the Office of the Information Commissioner if an appeal has been lodged.  You should also allow a few days leeway for postage delays, etc.

If the decision is to refuse the request

      Advise the third party of

Ÿ         the decision

      Advise the requester of

Ÿ         the decision

Ÿ his or her rights of appeal (in this case also appeal is directly to the Information Commissioner - Internal review is likewise not available to the requester where the request involves section 29 consultation)

Ÿ         the time limit for making such appeal (here also the time limit is two weeks)`

Please note:  Irrespective of whether the decision is to grant or refuse the request, once consultation under section 29 has taken place:

•      there is no right of internal review for any party*, and
•      appeal to the Information Commission by any party* must be made within 2 weeks of the notification of the decision

*party includes the requester and the third parties consulted under section 29

ENDS

What happens if .......

You receive no response from the third party within the 3 week deadline: you may proceed to make your decision.  However, it would be prudent to make contact with the person by phone to confirm that he/she does not intend to make a submission before finalising your decision.  It may also be possible that they have not received your notification.  You should also allow some leeway for postage delays, etc.

The third party wishes to know the name of the applicant:  There is discretion in the Act as to whether the identity of a requester is revealed to a third party.  It is generally desirable to give the requester an opportunity to comment before his or her identity is disclosed to the third party.  Discretion needs to be exercised here.  It should have regard to the individual request involved, whether formal consultation under section 29 is proposed and whether such consultation would be assisted by the disclosure of the name of the requester. 

You are unable to consult: Where you have decided that formal consultation under section 29 is required but you are unable to contact relevant third parties, you may request the permission of the Commissioner to proceed to a decision.  In this regard, the following procedures should be adopted after all reasonable steps have been undertaken to locate the third party:

•     Write to the Office of the Information Commissioner, and include details of:

1.      reasons for wishing to consult with the third party

2.      detail all efforts made to make contact with the third party

3.      the relevant records (enclose copies)

4.      indicate what your proposed decision will be regarding the third party records and the rationale for the decision

The Commissioner may either consent to non-compliance with the consultation requirements or advise you of additional steps to be taken (Section 29(5) and (6) refer).

The number of persons to consult is excessively large:  In some circumstances it may not be feasible to consult individually with all relevant third parties due to their very large number.  Section 29(2) requires notification to be issued to the persons concerned ‘in writing or such other form as may be determined’.  The Minister may introduce guidelines determining other forms of notifications in very exceptional circumstances (e.g. newspaper advertisement) where it would be impossible to individually contact the persons concerned due to their large number.

You propose to seek payment of a deposit:    Section 29(2) refers specifically to "not later than 2 weeks after the receipt of the request".    However, if you seek a deposit under section 47(7) from the requester, this allows the clock to stop until the deposit is received.  Section 47(7)(b) also provides that the process of searching for the records should not be commenced until the deposit is received.  This would effectively prevent you from consulting until such time as the deposit is received, as you realistically would not know either the third parties involved or the exact nature of the records.  It may be reasonable in those circumstances to postpone consultation until the deposit is received.

You wish to consult at internal review stage:   Where an internal review is sought of a request which has been refused under sections 26, 27 or 28, without public consultation, the Internal Reviewer may consider that there is an overriding public interest in releasing the information. In such a case, the Internal Reviewer should annul the original decision and refer the request back to the original Decision Maker to carry out third party consultation in accordance with section 29 and to decide whether public interest favours release or refusal. As section 29 applies to this decision, an appeal to the Information Commissioner would lie.

Consultation with third party (s 29(2))

Name

Address

Dear ........

I am writing to you in connection with the Freedom of Information Act 1997 (FOI Act).

A request under the FOI Act has been made to this department/office for access to certain records.  Included in those records is material which may, if access is granted to the requester, affect your interests.

The records relevant to your interests are:

[can be described here] or

[have been copied and attached]. 

At present, we are considering whether these records may be required to be disclosed in the public interest.

The purpose of this letter is to make you aware of this request and, in accordance with section 29 of the Act, to provide you with an opportunity to make submissions to this department/office about access to the records.  Your submissions must be made within 3 weeks of the receipt of this letter.

To assist you with any planned submissions, I have enclosed a copy of the relevant section(s) of the FOI Act in accordance with which this request is being considered.  [enclose copy of sections 26 to 29 and section 2 “definition of personal information” as appropriate)].  I consider at this point that section (26, 27, 28 or 2, as appropriate) is most relevant to consideration of this request, as the records concerned contain (your personal information, your commercial information or confidential information supplied by you, as appropriate).  

The section of the Act referred to above requires that this department/office protects your  (personal information, commercially sensitive information, confidential information, as appropriate) unless there are strong public interest factors favouring release of that information.  Our preliminary view is that the public interest would, on balance, be better served by granting than refusing the request.  I am listing for your information, the initial public interest arguments considered by this department/ office in considering release of the information in question.  These public interest factors are as follows:

[list public interest arguments in favour and against release]

If you have concerns about the possible release of this information in the public interest, you may send your views in writing on the matter to:

[enter contact name and address]

Your letter should be as detailed and thorough as possible and should give a careful account of:

1.      how, in your view, disclosure would be harmful to the public interest

2.      how disclosure of the records would be harmful to your interests

3.      any evidence or other supporting arguments in support of your views

You may refer to the relevant section(s) of the Act enclosed to support your views.  You may also refer to any other consequences of release of the records in question which you believe would be harmful or prejudicial to your interests.  To assist the decision maker, please give as much detail as possible in your reply.

Should you choose to make submissions to this department/office, your views will be carefully considered before reaching a final decision on this matter.  You will be notified in due course of the decision.  

If, having fully considered your views, the department/office is of the opinion that the records should be released in the public interest, you will be advised of your right to appeal that decision to the independent Information Commissioner.  In that event, I will send you further details on the appeal procedure.  No records will be released without your consent before you have had an opportunity to make such an appeal to the Information Commissioner.

[Yours sincerely]