A third party and Health Service Executive

Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.

The applicant wrote to the Commissioner on 27 August 2015 seeking a review of the decision of the HSE.

In a situation where an FOI body forms the view that a request is one to which section 38 of the FOI Act applies, it is required to undertake a process of consultation with the applicant, as an affected third party, in accordance with the provisions of section 38(2) of the FOI Act. Section 38(2) provides that a public body shall, not later than two weeks after the receipt of an FOI request, notify any relevant third parties of the request and that, apart from this section, it falls, in the public interest, to be granted.

However, as set out above, any consultation with third parties must be done within two weeks of receipt of the original request, or within a maximum of four weeks, if the FOI body seeks an extension under the provisions of section 38(3).

As outlined above, the original request was received by the HSE in November 2014. However, the HSE did not contact the applicant until 21 January 2015, more than nine weeks later. Moreover, in that letter, the HSE did not advise the applicant of a consultation process on the basis of section 38. In fact, the HSE only requested a submission from the applicant on the basis of section 38, on 25 June 2015, more than six months later.