Case number: 170477
11 June 2018
To put the request and my decision on this review into some context, it is necessary to give some background to this case although the extent to which I can do this is limited so as not to disclose the identity of the applicant or others. I understand that the applicant has alleged that a third party tampered with ear tags and passports and swapped animal identities in respect of an animal consigned to his herd number. He also appears to question the legality of certain steps taken by the Department's staff in updating the Animal Identification and Movement (AIM) system.
On 6 February 2017, the applicant purported to make an FOI request to the Department for information set out in "attached questionnaires". Attached were 16 pages of details and queries regarding certain animal movements and related matters. On 12 May 2017, the applicant submitted a "headlined bulleted breakdown of the information, records and documentation sought under FOI". He said that the 11 matters listed were "not exhaustive and that further information may be sought as the file demands."
On 20 June 2017, the Department issued its decision which followed the format of the applicant's letter of 12 May 2017. It granted access to some records in full and in part, and refused access to the rest under sections 31(1)(a) (legal professional privilege) and 37 (personal information) or on the basis that the details were outside the scope of the request. It also said that there may exist further documentation relating to one part of the request to which the decision maker said he had no access due to a colleague being on leave.
The applicant sought an internal review on 16 July 2017. The Department's internal review decision of 9 August 2017 granted full access to some further records, and refused access to the rest under sections 29 (deliberative process), 30(1)(a) (investigations by an FOI body), as well as the grounds relied on in the original decision.
The applicant applied for a review by this Office of the Department's decision on 4 October 2017.
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 details of the above exchanges and correspondence between this Office, the Department and the applicant. While the applicant acknowledged this Office's email of 11 December 2017 which set out various matters relevant to the review, no further response was received. I have had regard also to the provisions of the FOI Act and to copies of the withheld records.
The FOI Act provides for a right of access to records held by FOI bodies (section 11). Requests for information, as opposed to requests for records, are not valid requests under the Act. The FOI Act does not generally provide a mechanism for answering questions or providing clarification of the sort sought by the applicant, except to the extent that such questions etc. can reasonably be inferred to be a request for a record containing the requested information or clarification. Neither is it possible to broaden an FOI request to seek further records beyond those covered by the original request.
Thus, my review is confined to whether or not the Department has justified its refusal to fully grant access to the records it considered to be within the scope of the applicant's request. As set out in its internal review schedule, the Department has refused access to the following records concerning:
In making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, I can give little detail in my description of the records and in my analysis and reasons for the decision.
I must also take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large. I should also add that any right that the applicant may have to receive information or records as part of processes or procedures separate to FOI does not, of itself, create any entitlement to those or similar details under FOI.
Information Outside Scope of Request
The Department says that three excerpts redacted from the first page of record 3(g), which is a page of a staff member's notebook documenting his daily work, relate entirely to matters other than the applicant's case. It also says that one sentence in record 3(g)(vii) and in record 3(g)(viii) concerns a staff member's personal affairs which information is outside the scope of the request. Having examined the details concerned, I accept that they are not covered by the request and I will not consider them further.
Further records - part 3(g)
The Department's decision said that further records may exist in relation to part 3(g), which it would try to consider and release as soon as possible on the staff member's return. It confirmed to this Office that it subsequently determined that the staff member held no additional records related to this FOI request. It says it is unable to find any notification that issued to the applicant confirming this.
The applicant was made aware of the position in the course of the review and I see no reason to consider the matter further. However, the Department and all FOI bodies, should ensure that decision makers can access electronic and paper work-related records held by staff that are absent, to ensure that they can continue to discharge their statutory functions.
Records refused on the basis of their general nature - various parts of request
The Department says that records 1(e), 6(b), 7, 7(b), 8, 8(b), 8(d), 9, 9(b) and 10(e) were refused on the basis of their general nature, rather than having regard to the actual detail of the records. The question of whether a provision of the FOI Act applies to a record, and (if relevant) of whether the public interest requires that access be granted to it, must have regard to the content of the record concerned.
It is not appropriate for this Office to make a first instance decision on these records in such circumstances. I have decided to annul the Department's effective refusal of these records and to require it to make a fresh decision on them to which the statutory rights of review apply. This is subject to the applicant confirming to the Department that he wishes to pursue his request in relation to the records concerned, particularly in light of my decision on section 37 in this case as set out below. I should add that if the records are particularly voluminous, my decision does not preclude the Department from relying on the relevant administrative provision in section 15, subject to compliance with section 15(4) as necessary.
Original records no longer exist - records 1(d) and 3(b) - section 15(1)(a)
The Department granted partial access to records 1(d) and 3(b), which are screen shots of the AIM system at a particular point in time. It redacted what it considered to be personal information about a party or parties other than the applicant (section 37 of the FOI Act), and provided this Office with copies of the records as released to the applicant i.e. in redacted form. However, the Department did not take copies of the original screen shots before redactions were made. It says it is not able to re-create them because of changes to the database in the meantime. The FOI Act does not require the creation of records in any event.
Accordingly, I am not able to identify what was withheld from records 1(d) and 3(b) or decide if that information is exempt under section 37. While it is unsatisfactory that the Department did not take copies of the original records, I have no reason to dispute its position that it did not do so and that those records no longer exist. Section 15(1)(a) provides for, inter alia,the refusal of records that do not exist. In the circumstances, I find section 15(1)(a) to apply to records 1(d) and 3(b).
Legal Professional Privilege - records 3(g) and 3(g)(iii) (in part) and records 3(g)(vii), 3(g)(viii), 3(g)(x), 3(g)(xi), and 3(g)(xii) in full - Section 31(1)(a)
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of, in particular, confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege).
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, it lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. Furthermore, he accepts that, provided the ingredients of advice privilege or litigation privilege are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert the privilege over the communications at issue.
The Department contends that legal advice privilege applies to some of the information withheld from page 10 of record 3(g) and an email on page 1 of record 3(g)(iii), to all of the details withheld from records 3(g)(vii), 3(g)(viii), 3(g)(x), 3(g)(xi), and 3(g)(xii), and to record 3(g)(ix) in full.
The applicant maintains that the records would not be exempt from proceedings in a court and that access to them is "fundamentally in the public interest".
The Department says that details withheld from page 10 of record 3(g) comprise notes of a telephone conversation between a staff member and a legal adviser in legal services division, relating to the provision of legal advice. It says that the email withheld from page 1 of record 3(g)(iii) requests legal advice from a legal adviser in legal services division. The rest of the records are email strings, which the Department says are communications between its officials and a legal adviser in its legal services division, arising from a request for legal advice. Having examined the records and the Department's arguments, I accept that the records either seek or contain legal advice, or form part of a continuum of correspondence resulting from an original request for legal advice. I am satisfied that they attract legal professional privilege.
I find that the above records and parts of records are exempt under section 31(1)(a) of the FOI Act. This exemption is not subject to a public interest test.
The Department has relied on sections 29, 30 and/or 37 in relation to the rest of the withheld records or parts of records. I consider section 37 to be most appropriate exemption to consider at this point.
Personal Information - Section 37
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person seeking the record. While section 37(2)(a) provides for the release of personal information relating to an applicant, section 37(7) provides for refusal of a request where access to the record sought would, in addition to disclosing personal information relating to that requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information.
At the outset, I note that the applicant refers to certain information or records about third parties that he says he is entitled to obtain in processes separate to FOI. However, this does not mean that section 37 cannot be applied to such information or records, or similar information or records, in this case. Indeed, the fact that, further to his FOI request, the applicant may have been granted access to some third party personal information does not create any precedent by which I am bound in relation to the remainder of such information.
"Personal information" is defined at section 2 of the FOI Act as
"information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential" ...
Section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information. It is well settled that, where information can be classified as one of the 14 examples, there is no need for the requirements of the definition to also be met. The examples include (ii) information relating to the financial affairs of the person, (iii) information relating to the employment or employment history of the individual, (vi) information relating to ... the commission or alleged commission of any offence by, the individual, (ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification ..., (xiii) information relating to property of the individual (including the nature of the individual's title to any property) and (xiv) the views or opinions of another person about the individual.
Having examined the records, which to varying degrees concern animals consigned to the applicant's herd number, such information is inextricably linked to information relating to identifiable third parties. The context of a request alleging improper actions by third parties is also relevant. I am satisfied that the withheld third party information meets one or both of the definitions of personal information and also falls into a number of examples, set out above, of what section 2 requires to be considered as personal information.
I also note that the applicant has been given access to names of staff that were involved in updating AIM in respect of the animal movements the subject of the request but that a staff identity number has been redacted from a copy of an email sent to the Department by the applicant (record 3(g)(iii) refers). Section 2 provides that four quite narrow categories of information about individual FOI body employees are excluded from the definition of "personal information", as follows:
- the name of the individual,
- information relating to the office or position or its functions,
- the terms upon and subject to which the individual holds/held that office or
occupies/occupied that position, or
- anything written or recorded in any form by the individual in the course of and for
the purpose of the performance of the functions.
The exclusion does not provide for the exclusion of all information relating to staff, directors or office holders of FOI bodies. The Commissioner takes the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or director of, or office/position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/position holder while carrying out his or her official functions. The exclusion to the definition of personal information does not deprive staff members or directors of, or office/position holders in, FOI bodies of the right to privacy generally. Neither does it deprive staff etc. of the right to privacy in relation to information about their work performance or in relation to allegations that they have acted improperly. I do not consider the staff member's identity number to be covered by the exclusions at section 2.
I find the withheld records to be exempt under section 37(1) of the FOI Act.
Section 37(5) - The Public Interest
Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner IESC 26 ("the Rotunda judgment"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
In summary, the applicant contends that food and public safety and TB controls have been compromised by the alleged tampering with ear tags, forgery of identification and animal movement records, animal identity swapping and the alleged disappearance of an animal. He says that the personal gain of one person has been given precedence over the interests of the public, food safety and national protocols on animal identification and food traceability. He says that his business has suffered considerable loss and damage and that it is in the public interest and the interest of food safety that matters such as this be fully investigated. He says that he intends referring the matter "to Europe" and that access to the records is in his personal and the national interest.
The applicant says that he was told that he would be provided with certain information (DNA results). He says that, amongst other matters, the results would have been relevant to an injunction that he had sought and are of paramount importance to the public interest because, he alleges, they identify premeditated malpractice that compromises animal identification protocols and food safety. He also argues that he should be granted access to information concerning what he says is an unauthorised animal movement that was processed by the Department further to third party instruction. He says that this directly impacted upon him and also contravened animal identification protocols, animal movement and traceability protocols, food safety and privacy (in that "the herd number had been tampered with").
While the applicant has various private interests for seeking access to the records, it is clear from the Rotunda judgment that I cannot take them into account. Neither is it appropriate for me to direct the release of personal information about third parties, including about Department staff, in the public interest, simply on the basis of the applicant's assertions that they carried out various inappropriate or illegal acts that may have implication for food safety and other matters. In addition, I have no remit to determine if the third parties did what the applicant says they did, or if those acts were inappropriate or illegal. Furthermore, even if those acts were inappropriate or illegal, related information would still comprise personal information about the parties involved.
In so far as the applicant contends that he has been unfairly treated by the Department, it is not within this Office's remit to determine if the Department complied with the requirements of fair procedure in making any decisions that affected the applicant. In other words, it is not open to me to determine that the withheld records should be provided to the applicant now in the public interest under section 37(5)(a) of the FOI Act, simply because, for instance, he says that the Department did not provide him with DNA results it said it would give him. As the Commissioner has said in his composite decision in cases 090261/090262/090263 (Mr X and the Health Service Executive & Our Lady's Hospital for Sick Children - available on www.oic.ie), "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
It is also worth noting that FOI is concerned with the activities of public bodies generally; it is not necessarily a means by which all information about the activities of individual public servants is intended to be made known to the public at large. Neither is it concerned with the actions of private individuals or with ensuring their accountability.
The FOI Act is concerned with the activities of FOI bodies, and ensuring that FOI bodies can be held accountable for their actions. Thus, there is a public interest, recognised by the FOI Act, in ensuring the openness, transparency, and accountability of the Department in respect of its treatment of matters relating to the applicant and how it investigated the allegations reported to it. While this public interest has been served to a certain degree by the records already granted to the applicant, I can accept that it would be further served by granting access to the remaining records or parts of records.
On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). When considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I accept that the grant of access to the records would result in a significant invasion of the privacy of the third parties to whom the records relate. I find that the weight of the public interest in granting the request for withheld third party personal information is not such that it outweighs the public interest that the rights to privacy of the third parties should be upheld. In so far as the staff identity number is concerned, in the circumstances I do not consider that the public interest in the grant of access is such that the staff member's right to privacy in regard to that number should be breached, notwithstanding that the details concerned may not be considered to be particularly sensitive.
Accordingly, there is no need for me to consider the other exemptions relied on by the Department in relation to some of the withheld records.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision.
I find most of the records to be exempt under sections 15(1)(a) (records no longer exist), 31(1)(a) (records attracting legal professional privilege), and 37 (records containing personal information).
I annul the refusal of those records that the Department withheld further to a general appraisal of their contents i.e. records 1(e), 6(b), 7, 7(b), 8, 8(b), 8(d), 9, 9(b) and 10(e). I direct the Department to make a fresh decision on these records, subject to the applicant confirming to the Department that he wishes it to do so, and to notify the applicant of this in accordance with the requirements of the FOI Act.
I also specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within five working days of the expiration of the four week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.
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.