Case number: 170366
23 March 2018
On 5 May 2017, the applicant made an FOI request for a copy of an EHO's inspection report on a named restaurant. The inspection was carried out further to the applicant's complaint that he and a family member had suffered food poisoning after eating at the restaurant on a particular date.
The HSE's decision of 1 June 2017 provided the applicant with various records but refused to grant access to the records comprising the inspection report under sections 35 (confidential information) and 41 (release prohibited by law of the European Union or any enactment). The applicant sought an internal review of this decision on 9 June 2017, which the HSE affirmed in its internal review decision of 3 July 2017.
On 14 July 2017, the applicant sought a review by this Office of the HSE's decision.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above and to correspondence between this Office, the HSE, and the applicant. I have had regard also to the relevant records (provided to this Office for the purposes of this review) and to the provisions of the FOI Act.
This review is confined to whether or not the HSE has justified its refusal to grant access to the records comprising the inspection report.
Section 41(1)(a) of the FOI Act is a mandatory exemption provision. It applies where the disclosure of the requested record is prohibited by law of the European Union or any enactment (other than a provision specified in the Third Schedule to the FOI Act). Section 41(1)(a) is not subject to a public interest override.
Relevant EU and Irish Food Safety Laws
European Community (EC) Regulation No 882/2004 is concerned with "official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules." Article 10 ("control activities, methods and techniques") is concerned with tasks related to official controls. It provides that official controls on feed and food shall include examinations of control systems, checks on the hygiene conditions in feed and food businesses, interviews with feed and food business operators and their staff, the reading of values recorded by feed or food business measuring instruments, as well as "any other activity required to ensure that the objectives of this Regulation are met."
Article 7(1) ("transparency and confidentiality") requires competent authorities (which, in Ireland, are the Food Safety Authority of Ireland (FSAI) and its agent, the HSE) to ensure they carry out their activities with a "high level of transparency". For that purpose, the competent authorities are required to make relevant information held by them available to the public "as soon as possible". It provides that, in general, the public "shall have access" to:
(a) information on control activities of the competent authorities and their effectiveness; and
(b) information pursuant to Article 10 of EC Regulation No 178/2002. Article 10 of EC Regulation No 178/2002 provides that where there are reasonable grounds to suspect that a food or feed may present a risk for human or animal health, then, depending on the nature, seriousness and extent of that risk, public authorities shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or feed, or type of food or feed, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk.
Article 7(2) of EC Regulation No 882/2004 requires competent authorities not to disclose information acquired when undertaking official control duties "which by its nature is covered by professional secrecy in duly justified cases." It also provides that the professional secrecy requirement "shall not prevent the dissemination by competent authorities" of information referred to in Article 7(1)(b).
However, Article 7(3) gives examples of information that are "in particular" subject to "professional secrecy". One such example is "the confidentiality of preliminary investigation proceedings ...".
Finally, Article 9 ("reports") requires reports to be drawn up on the "official controls ... carried out", which shall be furnished to the relevant business operator, at least in cases of non-compliance. The Article suggests that even feed or food business operators do not have, for the purpose of the EC Regulations, any guaranteed entitlement to the reports concerned.
Turning to domestic legislation, Statutory Instrument (S.I.) No. 117 of 2010 has the "purpose of giving further effect to" EC Regulation No 882/2004. Article 13(1) of S.I. No. 117 of 2010 requires the competent authorities to ensure that they carry out their activities with "a high level of transparency in accordance with Article 7 of [EC Regulation No 882/2004]." However, Article 13(2) of S.I. No. 117 of 2010 provides that, for the purposes of Article 7(1) of EC Regulation No 882/2004, the competent authorities "may only release" the following information to the public:
Article 13(3) of S.I. 117 of 2010 makes it an offence for competent authorities "to disclose information acquired when undertaking official controls which by its nature is covered by professional secrecy, in contravention of Article 7(2) of [EC Regulation No 882/2004]."
It is the HSE's position that Article 7 of EC Regulation No 882/2004, and Article 13 of S.I. No. 117 of 2010, prohibit the release of the inspection report, and therefore that access to the records must be refused under section 41(1)(a) of the FOI Act.
The applicant says that "the present circumstances are not covered by professional secrecy" and that, in any event, Article 7(1)(b) of EC Regulation No 882/2004 requires the release of the requested report. He also says that the HSE "failed to properly take into account matters in the public interest." He says - albeit in the context of section 35 of the FOI Act- that the report comprises more than just information provided by the restaurant and that the HSE's methodology, analysis and conclusion are its work product and cannot be deemed to be confidential information provided by the restaurant.
In making my decision on this case, it should be noted that section 25(3) prevents me from disclosing any information contained in an exempt record. Therefore, I cannot outline in detail the reasons for certain aspects of my decision in the circumstances of this case.
I consider the investigation carried out by the HSE in this case to be preliminary investigation proceedings of the sort referred to in Article 7(3). Thus, I accept that the HSE is obliged to protect the confidentiality of those proceedings, and to treat the report of its investigation as confidential.
It is the applicant's position that the information in the records is of a sort that is covered by Article 10 of EC Regulation No 178/2002 and thus of a sort to which the public shall have access further to Article 7(1)(b) of EC Regulation No 882/2004. I have no remit to consider whether the competent authorities should have made information available in this case further to Article 10 of EC Regulation No 178 of 2002 and/or Article 7(1)(b) of EC Regulation No 882/2004. In any event, it seems to me that where competent authorities decide to take certain steps to notify the general public about a food or feed business where there are reasonable grounds to suspect that a food or feed may present a risk for human or animal health, they are not necessarily required to make public the inspection reports on which that decision is based.
I accept that the records are covered by professional secrecy and are required not to be disclosed, further to Article 7(2) of EC Regulation No 882/2004. It seems to me, accordingly, that release of the requested records is prohibited by law of the European Union. Although section 41's reference to the Third Schedule may only be in the context of Irish law, for the sake of completeness I note the professional secrecy provisions of EC Regulation No 882/2004 are not listed in the Third Schedule to the FOI Act. In the circumstances, I find that the requested record is exempt from release under section 41(1)(a) of the FOI Act. As already explained, this provision does not require consideration of the public interest.
In the circumstances, there is no need for me to consider the HSE's arguments that Article 13 of S.I No. 117 of 2010 also prohibits the grant of access to the records, or on section 35 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's refusal to fully grant the applicant's request under section 41(1)(a), on the basis that release of the records comprising the inspection report is prohibited by law of the European Union, specifically Article 7(2) of EC Regulation No 882/2004.
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.