Freedom of Information Act 2014

22.

Review by Commissioner of decisions

22. (1) This section applies to—

(a) a decision to refuse to grant an FOI request on the ground that, by virtue of section 42 , this Act does not apply to the record concerned,

(b) a decision under section 21 , other than a decision referred to in paragraph (d),

(c) a decision specified in any of paragraph (a)to (f) of section 21(1) ,

(d) a decision under section 21 , or a decision under section 27 , that a fee or deposit exceeding €10 or such other amount (if any) as may stand prescribed for the time being should be charged under section 27 ,

(e) a decision under section 14 to extend the time for the consideration of an FOI request,

(f) a decision under section 16 to defer the giving of access to a record falling within paragraph (b) or (c) of subsection (1) of that section,

(g) a decision on a request to which section 38 applies,

but excluding—

(i) a decision aforesaid made by the Commissioner in respect of a record held by the Commissioner or (in a case where the same person holds the office of Ombudsman and the office of Commissioner) made by the Ombudsman in respect of a record held by the Ombudsman, and

(ii) a decision referred to in paragraph (c), and a decision under section 27 referred to in paragraph (d), made by a person to whom the function concerned stood delegated under section 20 at the time of the making of the decision.

(2) Subject to this Act, the Commissioner may, on application to him or her in that behalf, in writing or in such other form as may be determined, by a relevant person—

(a) review a decision to which this section applies, and

(b) following the review, may, as he or she considers appropriate—

(i) affirm or vary the decision, or

(ii) annul the decision and, if appropriate, make such decision in relation to the matter concerned as he or she considers proper,

in accordance with this Act.

(3) A decision under subsection (2) shall be made as soon as may be and, insofar as practicable, not later than 4 months after the receipt by the Commissioner of the application for the review concerned.

(4) An application under subsection (2) shall be made—

(a) if it relates to a decision specified in paragraph (e) or (g) of subsection (1), not later than 2 weeks after the notification of the decision to the relevant person concerned or, in a case in which the Commissioner is of the opinion that there are reasonable grounds for extending that period, the expiration of an additional period of such length as he or she may determine, and

(b) if it relates to any other decision specified in that subsection, not later than 6 months after the notification of the decision to the relevant person concerned or, in a case in which the Commissioner is of the opinion that there are reasonable grounds for extending that period, the expiration of such longer period as he or she may determine.

(5) A person who makes an application under subsection (2) may, by notice given in writing, orally or by electronic means, to the Commissioner, at any time before a notice under subsection (10) in relation to the application is given to the person, withdraw the application, and the Commissioner shall cause a copy of any notice given to him or her under this subsection to be given to the relevant person, or the head, concerned, as may be appropriate, and any other person to whom, in the opinion of the Commissioner, it should be given, or (in the case of an oral withdrawal) cause such appropriate persons to be notified of the withdrawal.

(6) (a) As soon as may be after the receipt by the Commissioner of an application under subsection (2), the Commissioner shall cause a copy of the application to be given to the head concerned, and, as may be appropriate, to the relevant person concerned and, if the Commissioner proposes to review the decision concerned, he or she shall cause the head and the relevant person and any other person who, in the opinion of the Commissioner, should be notified of the proposal to be so notified and, thereupon, the head shall give to the Commissioner particulars, in writing or in such other form as may be determined, of any persons whom he or she has or, in the case of a refusal to grant a request to which section 38 applies, would, if he or she had intended to grant the FOI request concerned, have notified of the request.

(b) The Commissioner may, at his or her discretion, remove any personal or confidential information which was not intended for circulation to the FOI body concerned from the application under this section when causing a copy of the application to be forwarded to the FOI body.

(7) (a) Where an application under subsection (2) is made, the Commissioner may at any time endeavour to effect a settlement between the parties concerned of the matter concerned and may for that purpose, notwithstanding subsection (3), suspend, for such period as may be agreed with the parties concerned and, if appropriate, discontinue, the review concerned.

(b) In determining whether to suspend a review under this section, the Commissioner shall act in accordance with his or her own discretion.

(8) In relation to a proposed review under this section, the head, and the relevant person concerned and any other person who is notified under subsection (6) of the review may make submissions (as the Commissioner may determine, in writing or orally or in such other form as may be determined) to the Commissioner in relation to any matter relevant to the review and the Commissioner shall take any such submissions into account for the purposes of the review.

(9) (a) The Commissioner may refuse to accept an application under subsection (2) or may discontinue a review under this section if he or she is or becomes of the opinion that—

(i) the application aforesaid or the application to which the review relates (the “application”) is frivolous or vexatious,

(ii) the application does not relate to a decision specified in subsection (1),

(iii) the matter to which the application relates is, has been or will be, the subject of another review under this section,

(iv) the applicant has failed to provide the Commissioner with sufficient information or particulars, or otherwise has failed to co-operate with the Commissioner in the conduct of a review,

(v) there is no longer any issue requiring adjudication, as access to the records in question has been granted by the FOI body in the course of the review,

(vi) the application forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who, in the opinion of the Commissioner, appear to have made the requests acting in concert, or

(vii) accepting the application would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of his or her Office.

(b) In determining whether to refuse to accept an application under subsection (2) or to discontinue a review under this section, the Commissioner shall, subject to this Act, act in accordance with his or her own discretion.

(10) Notice, in writing or in such other form as may be determined, of a decision under subsection (2)(b), or of a refusal or discontinuation under subsection (9), and the reasons therefor, shall be given by the Commissioner to—

(a) the head concerned,

(b) the relevant person concerned, and

(c) any other person to whom, in the opinion of the Commissioner, such notice should be given.

(11) (a) The notice referred to in subsection (10) shall be given as soon as may be after the decision, refusal or discontinuation concerned and, if it relates to a decision under subsection (2), in so far as practicable, within the period specified in subsection (3).

(b) The report of the Commissioner for any year under section 47 shall specify the number of cases (if any) in that year in which a notice referred to in subsection (10) in relation to a decision under subsection (2)(b) was not given to a person specified in subsection (10) within the appropriate period specified in paragraph (a).

(12) In a review under this section—

(a) a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified, and

(b) a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.

(13) A decision of the Commissioner following a review under this section shall, where appropriate, specify the period within which effect shall be given to the decision and, in fixing such a period, the Commissioner shall have regard to the desirability, subject to section 26 , of giving effect to such a decision as soon as may be after compliance in relation thereto with subsection (11).

(14) Subject to this Act, a decision under subsection (2) shall—

(a) insofar as it is inconsistent with the decision to which this section applies, have effect in lieu thereof, and

(b) be binding on the parties concerned.

(15) Nothing in this Act shall prevent the Commissioner in a review under this section from taking into account that the record concerned—

(a) has lost its confidentiality,

(b) is no longer commercially sensitive, or

(c) is personal information relating to an individual other than the requester.

(16) In this section “relevant person”, in relation to a decision specified in subsection (1), means—

(a) the requester concerned and, if the decision is in respect of a request to which section 38 relates, a person to whom subsection (2) of that section applies, or

(b) if the decision is under section 9 or 10 , the person who made the application concerned under that section.