W College and Quality and Qualifications Ireland (FOI 2014)

Where section 38 applies, the FOI 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 FOI body, may apply directly for a review of that decision to this Office.

The applicant wrote to the Commissioner on 23 February 2016 seeking a review of the decision of QQI, in accordance with the provisions of section 38 of the FOI Act.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of QQI, to the content of the records, and to the provisions of the FOI Acts. The original requester was invited to but did not make a submission. I have decided to conclude the review by making a formal, binding decision.

The scope of this review is to determine whether QQI's decision to release, in the public interest, information to which sections 36 and 37 of the Act applied, was justified. I must consider whether the report is exempt from release on the basis that section 36 and/or 37 applies, and, if so, whether the public interest would be better served by release of that information.

I appreciate that the operation of section 38 of the FOI Act can be complex and that it places heavy demands on FOI bodies as regards time limits. However, the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform publishes useful guidance and sample letters in relation to the operation of the FOI Act (including section 38) and it is difficult to understand why an FOI body would not have regard to such guidance or use the templates where relevant.