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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 2 weeks

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 3 weeks 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.

(3) A person who receives a notification under subsection (2) may, not

later than 3 weeks 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 2 weeks 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 7 weeks 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

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) - para * of the manual refers)

commercially sensitive information (within the meaning of section 27(1) - para * of the manual refers), or

personal information (within the meaning of section 2 and section 28(1) - para * of the manual refers)

While the Act does not require consultation in other circumstances, it may be frequently a good idea to consult informally 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

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 2 weeks 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:

details of the request (Copies of records sought or extracts therefrom should be enclosed where possible).

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.

that the person may make submissions in relation to the request

that such submissions should be made not later than 3 weeks from the receipt of the notification

that the public body will consider such submissions before deciding whether to grant or refuse the request

that the person will be notified of the ultimate decision made

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.

Where the number of third parties is very 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 ‘writing or such other form as may be determined’. The Minister will consider introducing guidelines determining other forms of notifications in very exceptional circumstances where it would be impossible to individually contact the persons concerned due to their large number.

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 2 weeks after the receipt of submissions from the third parties consulted

or

not later than 2 weeks after the expiration of the time available to the third party for making of submissions (Please note that the third party has three weeks from receipt of the notification to make submissions i.e. 1 or 2 additional days should be allowed therefore for the time taken to deliver the notification by post.)

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 judgement 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.

Once the decision is made, the person consulted should be advised of the decision made

Should the decision maker decide to disclose a record against the wishes of the person consulted, that person must be also be advised of

his or her right to seek review of the decision by the Information Commissioner before the record is released

the procedures governing the exercise of that right

the time limit governing such exercise i.e. not later than 2 weeks after the notification of the decision to the person (section 34(4)(a) refers)

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 2 weeks: 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 time limits for making a decision in these circumstances is not later than 7 weeks after the receipt of the request.

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?

You may consult with third parties at internal review stage but the Act does not allow any additional time for such consultation i.e. the internal review must be completed within the 3 week time limit set out in section 14. It is preferrable therefore to ensure that any necessary consultations are 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).

The Central Policy Unit suggests:

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 endeavours 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 comes 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

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

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

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.

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.

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

within 2 weeks, notify them in writing of -

the request (but not the necessarily the name of the requester) and enclosing copies of the records concerned, where possible

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.

the third party’s right to make a submission within 3 weeks

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

the third party will be advised of any decision to release the information

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

within 2 weeks of receipt of submissions (or within 2 weeks 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

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

objectively assess the likely effects of disclosure

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

weigh the various public and private interests involved

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.

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