Text of Section 29

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.

(2) Subject to subsection (5), before deciding whether to grant a
request to which this section applies, a head shall, not later than 10 working days after the receipt of the request­

(a) if the request is one to which section 26 (3) applies, cause the person who gave the information concerned to the public body concerned and, if the head considers it appropriate, the person to whom the information relates, or

(b) if the request is one to which section 27(3) or 28(5) applies, cause the person to whom the information relates,

to be notified, in writing or in such other form as may be determined­

(i) of the request and that, apart from this section, it falls, in the public interest, to be granted,
(ii) that the person may, not later than 15 working days after the receipt of the notification, make submissions to the head in relation to the request, and
(iii) that the head will consider any such submissions before deciding whether to grant or refuse to grant the request.

(2A)(a) The head may, as respects a request to which this section applies received by him or her, extend the period specified in subsection (2) for compliance with that subsection by such period as he or she considers necessary but not exceeding a period of 10 working days if in the opinion of the head–

(i) the request relates to such number of records, or
(ii) the number of persons required by subsection (2) to be notified of the matter referred to in paragraphs (i) to (iii) of that subsection is such,

that compliance with that subsection within the period specified therein is not reasonably possible.

(b) Where a period is extended under this subsection, the head concerned shall cause notice in writing, or in such other form as may be determined, to be given to the requester concerned, before the expiration of the period, of the extension and the period thereof and reasons therefor.

(c) The reference in subsection (2) to 10 working days shall be construed in accordance with any extension under this subsection of that period.

(3) A person who receives a notification under subsection (2) may, not
later than 15 working days after such receipt, make submissions to the head concerned in relation to the request to which this section applies referred to in the notification and the head­

(a) shall consider any such submissions so made before deciding
whether to grant the request,

(b) shall cause the person to be notified in writing or in such other
form as may be determined of the decision, and

(c) if the decision is to grant the request, shall cause to be included
in the notification particulars of the right of review of the
decision under section 34, the procedure governing the exercise
of that right and the time limit governing such exercise.

(4) Subject to subsection (5), a head shall make a decision whether to
grant a request to which this section applies, and shall comply with
subsection (3) in relation thereto, not later than 10 working days after­

(a) the expiration of the time specified in subsection (3), or

(b) the receipt of submissions under that subsection in relation to the
request from those concerned,

whichever is the earlier, and section 8 (1) shall be construed and shall have
effect accordingly.

(5) If, in relation to a request to which this section applies, the head
concerned is unable to comply with subsection (2), having taken all
reasonable steps to do so, the head shall, if the Commissioner consents to
the non-compliance, make a decision whether to grant or refuse the request
not later than 35 working days after the receipt of the request and in such a case
section 8 (1) shall be construed and shall have effect accordingly.

(6) If, in relation to a request to which this section applies, the
Commissioner does not consent, pursuant to subsection (5), to
non-compliance with subsection (2), he or she shall direct the head
concerned to take specified steps within a specified period for the purpose
of complying with subsection (2) and if, having taken those steps within that
period or such further period as the Commissioner may specify, the head
is unable to comply with that subsection, he or she shall, as soon as may
be, make a decision whether to grant or refuse the request.

Introduction

The duty to consult under section 29 arises where a decision maker has made a preliminary conclusion that the document attracts exemption under:

· section 26(1)(a) - information received in confidence, or
· section 27(1) - commercially sensitive information, or
· section 28(1) - personal information

but, exceptionally, the decision maker is considering that, on balance, the public interest would be better served by granting access.


Elements of the Section

29(1) - What this section refers to

Section 29(1) states that a 'request to which this section applies' means a request to which the following provisions of the Act apply:

section 26(3) - release of confidential information in the public interest
section 27(3) - release of commercially sensitive information in the public interest
section 28(5) - release of personal information in the public interest or where the grant of the request would benefit the individual concerned

29(2) - Procedures for consultation

When should you consult?

a) Consultation procedures required under the Act

The Act requires consultation with relevant third parties where the decision maker is considering that, on balance, the public interest would be better served by granting access to a record relating to:

· information obtained in confidence (within the meaning of section 26(1)(a))
· commercially sensitive information (within the meaning of section 27(1)), or
· personal information (within the meaning of section 2 and section 28(1))

b) Consultation in other circumstances

While the Act does not require consultation in other circumstances, it is generally recommended that informal consultation takes place even where the decision maker forms a preliminary view to refuse access. Consultation in these circumstances will have the following advantages:

· it ensures that the decision maker has made all the enquiries necessary to reach an objective assessment of the effects of disclosure
· if the requester seeks internal review of the decision to refuse access, the consultation will most likely have to be done at internal review stage
· it may be that the third party consulted has no objection to the release of all or part of the information

Ø if the third party does object to disclosure, he or she may identify some other valid reason for exemption which is not known to the decision maker. This will strengthen the exemption claim on internal review or review by the Commissioner

What steps must you take when complying with section 29(2)?

The public body, shall, within 10 working days of receipt of the request, notify any relevant third parties (i.e. the person to whom the information relates or the person who supplied the information) of the following:

1. details of the request (Copies of records sought or extracts of same should be enclosed where possible).
2. that the public body is considering release of the information in the public interest - details of the public interest criteria should also be included. Details of the exemption under consideration should also be explained including any terms or phrases whose meaning may be unclear to those unfamiliar with the Act.
3. that the person may make submissions in relation to the request
4. that such submissions should be made not later than 15 working days from the receipt of the notification
5. that the public body will consider such submissions before deciding whether to grant or refuse the request
6. that the person will be notified of the ultimate decision made
7. that if the decision is to grant the request, against the wishes of the person being consulted, that person shall have the right to seek independent review of the decision by the Information Commissioner before any information is released.

Extension of time limit for initiating consultation

In some circumstances it may be difficult to consult individually with all relevant third parties due to their very large number or there may be such a significant amount of records involved that compliance with the initial ten day period for initiating all consultation is not reasonably possible. In such instances, the Decision Maker may extend the initial 10 working day period by a further 10 working days to facilitate such consultation. The requester must be informed of such extension and the reasons therefor prior to the expiry of the initial ten day period.

Making the Decision

How much time do you have?

Section 29(3) provides that a decision maker shall make a decision whether to grant or refuse the request:

not later than 10 working days after the receipt of submissions from the third parties consulted

or

not later than 10 working days after the expiration of the time available to the third party for making of submissions (Please note that the third party has 15 working days from receipt of the notification to make submissions (1 or 2 additional days should be allowed for postal delivery of the notification)

Analysis of responses

· A decision on access must not be made until the decision maker has had regard to any submissions made by the persons consulted.
· The person consulted has no power of veto - even though he or she may strongly oppose release, the decision maker must make his or her own judgment having regard to the submissions and any other enquiries made.
· Any submissions received must be fully and fairly considered. One cannot simply unquestioningly accept the views or arguments of the third party, but must equip oneself with sufficient knowledge of the issues concerned to make an objective assessment of the matter. The issues to be considered will, of course, vary depending on whether the material in question falls within the scope of section 26, 27 or 28. The elements of the relevant exemption in each case and associated public interest considerations should be carefully considered and balanced against the arguments put forward by the person consulted.

Having made the decision

· Once the decision is made, the person consulted should be advised of the decision.
· Should the decision maker decide to disclose a record against the wishes of the person consulted, that person must be also be advised of

o his or her right to seek review of the decision by the Information Commissioner before the record is released
o the procedures governing the exercise of that right
o the time limit governing such exercise i.e. not later than 10 working days after the notification of the decision to the person (section 34(4)(a) refers) and
o the amount of the fee applicable to such a review application – currently €50.

· The requester should also be advised of the decision made. If the decision is to grant the request, he or she should be advised that access cannot be offered for at least a further 10 working days: until the time for appeal available to the third party has lapsed.

Inability to consult

In some rare and exceptional circumstances, the decision maker will be permitted to make a final decision to release without having consulted with the third party to which the information relates. This is allowed where:

· the body is unable to consult has taken all reasonable steps to do so, and
· the Commissioner consents to the decision maker making a decision in those circumstances

This will most likely arise where the balance of the public interest requires release and the public body has been unable to determine the third party's whereabouts. What will amount to reasonable steps will be ultimately be determined by the Information Commissioner but it is expected that the decision maker will have:

· checked all relevant records in their own body to determine a contact address or phone number
· consulted all relevant personnel in their own body, or elsewhere, who may have access to up to date information
· checked all publicly available sources e.g. phone book

The nature and degree of sensitivity of the information will also be important factors in determining whether reasonable steps have been taken in a particular case.

The maximum time limit for making a decision in these circumstances is not later than 35 working days after the receipt of the request or, in exceptional cases, 45 working days (i.e. if the request is one in which compliance with the initial 10 working day period for initiating consultation with third parties is not reasonably possible).

If the Information Commissioner is not satisfied that all reasonable steps have been taken to contact the persons concerned, he or she is empowered to direct a body to take certain further steps within a specified period. If having taken those steps, the body is still unable to comply with the consultation requirements, the decision maker may then make a decision whether to grant or refuse the request.

Can you consult at internal review stage?

Internal Review does not apply to a request to which section 29 applies i.e. there is a direct right of appeal to the Information Commissioner by the third party where it is proposed to release information or by the requester where the decision, following consultation, is to refuse the request. Where an internal reviewer considers that the original decision-maker erred in not following the section 29 procedure, h/she may consult with third parties but the Act does not allow any additional time for such consultation or for the receipt of submissions i.e. the internal review must be completed within the 15 working day time limit set out in section 14. Any necessary consultations should therefore be carried out by the initial decision maker.

Onus of proof on third party

In general, when a decision of a public body under the FOI Act, is appealed to the Commissioner, the onus of proof rests with the public body. However, where a third party has been consulted in accordance with section 29, the onus is on that person consulted to show to the satisfaction of the Commissioner that the decision of the public body was not justified (Section 34(12) refers).



Central Policy Unit advises:

Departments and bodies can substantially reduce the requirement to consult where they have put strategies in place at the outset to advise persons submitting information (which may be of a confidential, personal or commercially sensitive nature) to the body:

· that it will come within the scope of the Freedom of Information Act
· to indicate when submitting the information whether any of the information is sensitive and to state clearly the reasons for its sensitivity

It is particularly important that this approach is adopted where a large quantity of information is likely to be received and is likely to be of interest to the public e.g. a request for submissions in relation to a proposed policy change, etc.

The following standard statement is suggested for inclusion in:

· tender documents
· invitations for submissions
· standard forms requiring information to be supplied

"The department/office undertakes to use its best endeavors to hold confidential, any information provided by you in this (tender/form/submission, etc.). subject to the department's obligations under law, including the Freedom of Information Act which came into force on 21 April 1998. Should you wish that any of the information supplied by you in this tender/form/ submission should not be disclosed because of its sensitivity, you should, when providing the information, identify the same and specify the reasons for its sensitivity. The department will consult with you about sensitive information before making a decision on any Freedom of Information request received".

The Consultation Process in Summary

Ø a careful inspection of the contents of the records involved to determine if they concern the interests of a third party

Ø an initial assessment as to whether disclosure in the public interest may be considered

Ø if the initial assessment tends towards disclosure in the public interest, identification of the third parties with whom consultation is required in accordance with section 29.

Ø if the initial assessment tends towards refusal, consideration of consultation with relevant third parties to determine if they have views on release or disclosure which may not have formed part of your initial decision making.

Ø take all reasonable steps to locate and make contact with relevant third parties

Ø within 10 (or exceptionally 20 working days), notify them in writing of -

q the request (but not necessarily the name of the requester) and enclosing copies of the records concerned, where possible
q that the decision maker is considering a preliminary decision to disclose the information and details of the public interest criteria under consideration. Details of the exemption under consideration should also be explained.
q the third party's right to make a submission within 15 working days
q that any submission will be carefully considered before the final decision is made, and
q the third party will be advised of any decision to release the information
q that 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

Ø within 10 working days of receipt of submissions (or within 10 working days of the expiration of the time limit available to the third party) critically analyse the submissions received in the light of the relevant exemption provision and public interest considerations

Ø if unable to consult, request the permission of the Commissioner to proceed to a decision

Ø objectively assess the likely effects of disclosure

Ø consider the results of any other enquiries made to ascertain the public interest in disclosing or withholding the information

Ø weigh the various public and private interests involved

Ø inform the third party and the requester of the decision. If the decision is to grant the request, advise a) the third party of his or her rights of appeal and b) the requester that the information must be withheld until the time for appeal to the Commissioner has expired.