Case number: 160437
On 2 March 2016, the applicant submitted a request to the Department for access to, among other things, (i) all reports on inspections of dog breeding establishments held by it and which were carried out since 1 January 2014 under an agreed protocol under the Animal Health and Welfare Act 2013 and the Dog Breeding Establishments Act 2010 and (ii) any internal documents held by the Department's animal welfare section that relate to conditions in dog breeding establishments from 1 January.
On 3 May 2016, the Department refused access to all records it identified as coming within the scope of this part of the request (records 228 to 289 on the schedule of records the Department prepared in response to the request), on the ground that the release of the records could endanger the life or safety of people involved with the dog breeding establishments and on the ground that records contain commercially sensitive information. On 6 May 2016, the applicant sought an internal review of that part of the Department's decision. On 1 June 2016, the Department upheld its original decision. The applicant sought a review by this Office of that decision on 8 October 2016.
During the course of the review, noting that the applicant had indicated in her request for internal review that "... the identifying information and commercial information can always be redacted from the records", Simon Noone of this Office asked the Department to consider release of the records with the redaction of identifying information. The Department agreed to do so and subsequently released redacted versions of the records at issue, with the redaction of all names, addresses and counties in order to prevent the identification of the establishments. However, the applicant indicated that she was still seeking full release of the reports.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Department and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue.
As outlined above, the Department has released redacted versions of the records at issue to the applicant, with the deletion of certain identifying information. Therefore, this review is concerned solely with the question of whether the Department was justified in withholding the information in question from the records at issue.
The information redacted form the records at issue includes details of Departmental Veterinary Inspectors, details of the staff of the various establishments, and identifying information relating to the establishments and the counties in which they are based. The Department refused access to the information at issue under section 32(1)(b). This is a discretionary exemption which protects records, the release of which could reasonably be expected to "endanger the life or safety of any person". The exemption is not commonly used and it should not be applied without careful consideration having been given to whether the expectation of endangerment is a reasonable one in all the circumstances. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such physical harm will definitely occur, but the FOI body must show that there is reasonable expectation of such harm arising.
In its original decision, the Department stated that "dog breeding establishments (so called puppy farms) are the subject of significant opposition and campaigning from some welfare groups" and that "... some animal rights groups may consider it legitimate to target any named/identified puppy farms with direct action/protests". The Department further stated that "This is something we have seen in the past in Ireland (fur farms) and more recently in Ireland (a circus in Dublin); in the past the UK we have seen extreme action including violence being used by animal rights groups in campaigns."
While the Department did not make a written submission to this Office, its Senior Superintending Veterinary Inspector spoke by telephone to Mr Noone during the course of the review to explain the concerns of the Department regarding the possible release of the identifying information, and to provide some previous examples of what he considered to be the targeting of people involved in dog breeding by animal welfare campaigners.
In Case 160089 (Siobhan Maguire of The Sunday Times and the Health Products Regulatory Authority), I directed that certain identifying information should be redacted from reports of premises using animals for scientific or educational purposes under section 32(1)(b). In that decision, I stated as follows:
"While the vast majority of opponents of animal research are entirely peaceful, I am satisfied that there exists a small minority who are willing to use violence against those involved in such research. I am satisfied that previous examples of activists targeting the staff of organisations which are engaged in animal testing demonstrate that there is a continuing threat of abusive and violent behaviour posed by some activists...In my opinion, the disclosure of information revealing the location of the research institutions, and the identities of individuals involved in such research and engaged in inspections could reasonably be expected to endanger the life or safety of such individuals."
I found that the disclosure of information revealing the location of the research institutions, and the identities of individuals involved in such research and engaged in inspections could reasonably be expected to endanger the life or safety of such individuals.
I am satisfied that similar considerations are applicable in this instance. Commercial dog breeding has generated considerable controversy and there have been protests against individuals involved following negative media coverage. I consider that a small minority of animal welfare activists have engaged in violent and abusive behaviour in the past, and that the Department's expectation of endangerment to the safety of individuals connected with the dog breeding establishments and the inspection of same by the release of the information at issue was reasonable. I find, therefore, that the Department was justified in refusing access to the identifying information under section 32(1)(b). Section 32(3) provides that section 32(1) shall not apply in certain limited circumstances, none of which are applicable in this instance.
For the sake of completeness, I wish to address a number of arguments made by the applicant in support of her view that the records should be released in full. Firstly, she argued that some local authorities have released similar records in the past. While no evidence has been presented to this Office in support of that contention, it does not, in any event, alter my view that the Department's expectation of harm was reasonable in this case and that it was justified in redacting the records under section 32(1)(b).
Secondly, the applicant argued that access to the reports in full would provide an important source of information for potential purchasers of dogs. I accept that there is a public interest in enhancing the transparency of the Department in relation to its inspection of dog breeding establishments and that the full release of reports would further enhance that transparency. However, unlike other exemptions in the FOI Act, section 32 does not contain a public interest balancing test, except in relation to certain specific information which is not at issue here. Even if it did, it is important to note that the public interest in enhancing transparency and accountability relates to the FOI body concerned, not to the establishments that are subject to inspection. Arguably, such a public interest is served to a large extent by the release of the redacted records.
Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Department to withhold certain identifying information from the records at issue.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.