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Questions related to Third Party Consultation

The FOI Act does not provide a definition for “third parties”. Often, identification of the third party will depend on the context of a record and the exemption being considered. 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.

The requirement to consult with a third party is triggered when an FOI request is one to which Section 38 applies. Formal third party consultation must be initiated in a case where, on examination of a record which contains personal, commercially sensitive or confidential information, a decision is made, in the public interest, to release the record.

Section 38 of the Act outlines the obligations on Public Bodies in relation to the timing of contact with affected third parties. Formal third party consultation 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.

The notification must be made in writing ( or other form as may be determined), this 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 38.

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. It is, therefore, at the discretion of the decision-maker. However the decision maker 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 Public Body must advise the third party of the decision to release the records and their rights of appeal to the Office of the Information Commissioner within 10 working days. The Public Body must also advise the requester that a third party may appeal and the records must be withheld for a further 10 working days.

There is no specific provision in the Act on the notification of third parties where it arises for the first time at internal review stage, the requirement in section 38 that the “head” follow the notification procedure can be taken to apply to both initial decisions and internal review decisions. The formal procedure required by section 38 should be followed where an internal reviewer considers that the record is exempt under sections 35, 36 or 37 but that the exemption should be set aside in the public interest. This allows for the legitimate interest of the third party where the request is one to which section 38 applies.

The three week period for the notifying of the internal review decision must be adhered to, otherwise, the original decision is deemed to have been affirmed under section 19(2) of the FOI Act.