Case number: 170033

Whether the HSE has justified its refusal under sections 35(1)(b) ( duty of confidence) and 41(1)(a) (disclosure prohibited by law) of the applicant's request made in the form of questions posed about a food business 

29  May 2018 

Background

 
The applicant's FOI request to the HSE of 21 November 2016 asked four questions, as follows:
 
"1. Is [the food business] registered with the Environmental Health Unit of the HSE in accordance with Irish and EU legislation and directives? This is a yes or no.
 
2. If registered, how many times has it been inspected in the previous 5 years. I only require a number not anything to do with contents of the report of inspections. 
 
3. On the registration form submitted to the HSE by [the food business] who is the name of the operator of [the food business] i.e. the name of the person legally responsible for appropriate hygiene and public safety in relation to serving food to the public. 
 
4. Who is the owner of the premises housing [the food business]." 
 
He said that his request for disclosure was in the public interest and that he had not requested any commercially sensitive information. 
 
The HSE's decision of 7 December 2016 refused the request under section 41 of the FOI Act (release prohibited by law of the European Union or any enactment), and section 35(1)(b) (information subject to a duty of confidence). The applicant sought an internal review on 19 December 2016. The HSE affirmed its refusal of the request on 4 January 2017. On 19 January 2017, the applicant sought a review by this Office of the HSE's decision.
 
The review took a considerable amount of time to carry out. It required an analysis of and consideration of legal advice on complex European and Irish laws on food safety. There were also difficulties in establishing what records were held which fell within the scope of the request as made. I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above exchanges, to correspondence between this Office, the HSE, and the applicant. I have had regard also to the records that the HSE provided to this Office for the purposes of this review and to the provisions of the FOI Act. 
 
 

Scope of the Review

 
This review is confined to whether or not the HSE has justified its refusal of the applicant's request.
 
The applicant's request specified the name and address of the food business about which he is seeking information. I do not consider that the request as made covers information concerning any other food business that may have operated at the same location, even ones that may have had similar names. Thus, in so far as part 2 seeks the number of times the specified food business was inspected in the five years prior to the request, it only covers the number of inspections during that time in which a food business operated at the specified address under the specified name. 
 
 
Relevant EU and Irish Food Safety Laws 
 
The HSE's position is that it is prohibited by European and Irish law from disclosing the information sought and that section 41(1)(a) of the FOI Act applies accordingly. 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. 
 
Although this decision will have to deal with issues arising from the scope of the request and the nature and form of  records actually held, I have decided to set out first the results of my consideration on the section 41(1)(a)/“prohibition” claim and then to go on to apply my conclusions in this case.  
 
European Community (EC) Regulation No 852 of 2004 sets out "general rules for food business operators on the hygiene of foodstuffs ...". In domestic legislation, Statutory Instrument (S.I.) No. 369 of 2006 gives further effect to EC Regulation No 852/2004. 
 
EC Regulation No 853 of 2004 lays down specific hygiene rules for food of animal origin. 
 
EC Regulation No 882 of 2004 is concerned with "official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules." It is given further effect in domestic legislation by S.I No. 117 of 2010. 
 
Article 10 of EC Regulation No 178 of 2002 provides that, "[w]ithout prejudice to the applicable provisions of Community and national law on access to documents, 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."
 
Registration
Article 6 of EC Regulation No 852/2004 requires every food business operator to notify the appropriate competent authority of each establishment under its control that is carrying out any of certain specified activities, with a view to the registration of such establishment. The competent authority in Ireland, as relevant to this case, is the Food Safety Authority of Ireland (FSAI) and its agent, the HSE. 
 
Article 4(1) of EC Regulation No 853/2004 requires food business operators to place products of animal origin on the market only if, amongst other things, the establishment that prepared those products has been registered and, in certain cases, approved by the competent authority. Article 4(2) of EC Regulation No 853/2004 excludes retail operations from the need to get approval except where, as I understand it further to Article 1(5)(b) of EC Regulation No 853/2004, these are also selling to other food businesses. Article 31(f) of EC Regulation No 882/2004 requires that a list of approved establishments shall be made available to other member states and to the public (the "Approved Establishment List"). 
 
In domestic legislation, Article 6 of S.I. No. 369 of 2006 makes it an offence for a food business not to notify the competent authority of each establishment under its control for the purposes of their registration. 
 
Official Control
Article 2 of EC Regulation No 882/2004 defines "official control" as "any form of control that the competent authority or the Community performs for the verification of compliance with feed and food law, animal health and animal welfare rules". It defines "verification" as "checking, by examination and the consideration of objective evidence, whether specific requirements have been fulfilled". 
 
Article 3(1) of the Regulation provides that "Member States shall ensure that official controls are carried out regularly, on a risk basis and with appropriate frequency, so as to achieve the objectives of this Regulation taking account of ... any information that might indicate non-compliance". 
 
Inspections
Article 10 of EC Regulation No 882/2004 ("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, inspections, 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) of EC Regulation No 882/2004 ("transparency and confidentiality") requires competent authorities 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 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)]". 
 
Article 7(3) gives examples of information that are "in particular" subject to "professional secrecy", including "the confidentiality of preliminary investigation proceedings ..." and "personal data".  
 
Turning to domestic legislation, 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]." 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: 
 
  • information coming within the terms of Article 10 of EC Regulation No 178/2002 and 
  • information on the control activities and their effectiveness in an anonymised format. 
 
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]."
 
None of the above are listed in the Third Schedule to the FOI Act. 
 

Findings

 
Implications of Relevant EU and Irish Food Safety Laws for the Competent Authorities and the Food Business 
Registration
Further to the requirements of the European and Irish food safety laws set out above, it appears to me that all food businesses are legally obliged to give certain information to the competent authority for the purpose of registration. I understand that relevant details are recorded on a Food Business Operator register which is not required by the relevant laws to be made public. 
 
I have no reason to consider the food business the subject of the request to be selling food to other food businesses. Thus, it would seem to me that it is not an establishment that requires approval, or that should be on the publicly available Approved Establishment List (and from which, in turn, one could infer whether it had been registered). 
 
Inspections
It seems to me that, in order to detect non-compliance with the various food laws, the competent authorities must be expected to inspect all food premises, not only those food business that have forwarded information relevant to the purposes of registration. It is also the case that the competent authorities are required to carry out routine inspections of food businesses as part of their monitoring and audit practices as well as inspections arising from any complaints received. 
 
Staff of competent authorities are required not to disclose information that is subject to professional secrecy and to be transparent about their control activities. It strikes me that, by virtue of the requirement "in duly justified cases", Article 7(2) limits the extent to which professional secrecy covers information acquired when undertaking official control duties (other than information specified in Article 7(3)). 
 
Parts 1-3 - records exempt under an enactment - section 41(1)(a) 
As already set out, section 41(1)(a) of the FOI Act 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). 
 
The HSE maintains that information in the Food Business Operator register is solely obtained by its staff in the course of their official control duties. It appears to be claiming that Article 7(2) of EC Regulation No 882/2004 prohibits release of any details from that register and also that the details are not of a sort that the HSE is permitted to release further to Article 13(2) of S.I. No. 117 of 2010. It argues that if the legislature had intended for the Register of Food Businesses to be published or made available to the general public in the same way as the Approved Establishment List, it would have provided for this in S.I. No. 117 of 2010. 
 
The HSE also says that further to Article 7(2) of EC Regulation No 882/2004 and/or Article 13(2) of S.I. No. 117 of 2010, it is prohibited from disclosing the number of inspections carried out. In particular, it says that information about the HSE's inspections of a specific food business is not "information on control activities and their effectiveness in an anonymised format". 
 
Parts 1 and 3 - Registration Information
The fact that S.I. 117 of 2010 does not require the publication of the Food Business Operator register does not preclude disclosure of information in it under FOI if that information is not exempt. 
 
The HSE has not explained why it considers the process for registration of food businesses to comprise an official control activity. Neither does it explain why it considers that "registration ... details constitute information gained during the inspection of food premises ...".
 
Among the control activities listed in Article 10 of EC Regulation No 882/2004 is "any other activity required to ensure that the objectives of this Regulation are met." Furthermore, the list of such activities is non-exhaustive. I accept, in the circumstances, that the requirement on food businesses to provide information to the competent authorities for the purposes of registration, and the subsequent registration by the competent authority, are control activities performed for the verification of compliance with feed and food law and other matters.
 
As a result, I must consider the requirements of Article 7(2) of EC Regulation 882/2004.
 
Part 1 - The Fact of Registration or Otherwise 
Article 7(3) of EC Regulation No 882/2004 does not include the registration form or details of the fact of registration as examples of information that are "in particular" subject to "professional secrecy". While the details could nonetheless be covered by professional secrecy and prohibited by Article 7(2) from being disclosed, the HSE has not addressed the fact that Article 7(2) makes it clear that not every piece of information acquired from a business in the course of control activities is subject to professional secrecy. 
 
It seems to me that it is the nature of the information that is key along with the circumstances in which it was obtained. Generally speaking, I would consider that information about a business that may be subject to professional secrecy is information intrinsic to the operation of the business. For instance, it may include trade secrets, proprietary recipes, customer lists or certain operational matters concerning the business.
 
However, Article 6 of EC Regulation No 852/2004 requires food businesses to notify the competent authorities with a view to registration. Article 6 of S.I. No. 369 of 2006 makes it an offence for an Irish food business not to do so. In such circumstances, I do not consider that whether a food business has provided information for the purposes of registration, or the fact of registration or otherwise, are covered by professional secrecy. Thus, I consider that Article 7(2) of EC Regulation No 882/2004 does not prohibit disclosure of such details.
 
Turning to the HSE's arguments on Article 13 of S.I. 117 of 2010, I am advised that, having regard to the provision's wording, Article 13(2) can be read as relating only to Article 7(1) of EC Regulation 88/2004. Article 7(1) is concerned with the performance of control activities by competent authorities as a measure in and of itself and with being transparent in relation to such performance. Article 13(2) restricts access to information on these activities to, inter alia, such information in an anonymised form. 
 
However, Article 7(1) is not concerned with information or records arising from the specific activities, such as registration information on the Food Business register or elsewhere. I consider that Article 13(2) is not relevant to such details. 
 
I am also advised that Article 13(3) of S.I. 117 of 2010 is the implementing measure for the requirement in Article 7(2) of EC Regulation 882/2004 that competent authorities take steps to ensure that staff are required not to disclose information acquired when undertaking their official duties which by its nature is covered by professional secrecy in duly justified cases. In light of my view that disclosure of whether a food business has provided information for the purposes of registration and the fact of any registration would not be covered by professional secrecy, I consider that Article 13(3) is not relevant. 
 
Having considered the provisions of Article 13 of S.I. No 117 of 2010 in the context of Article 7 of EC Regulation 882/2004, I do not consider that Article 13 of S.I. No 117 of 2010 prohibits access to a record showing whether a food business has provided information for the purposes of registration, or the fact of registration or otherwise. I believe that section 41(1)(a) does not apply to exempt such details from release under FOI. 
 
Part 3 - The Name of the Operator as Contained in the Registration Form
Part 3 of the request seeks the name of the operator of the food business as contained in the registration form submitted by the business.
 
Article 7(3) of EC Regulation No 882/2004 includes personal data as an example of information that is "in particular" subject to "professional secrecy". If I were satisfied that the name requested at part 3 comprises personal data, it would be covered by professional secrecy and its release prohibited by law of the European Union (i.e. Article 7(2) of EC Regulation No 882/2004). In that situation, I would be required to find that section 41(1)(a) applies. It should also be noted that while the applicant says it is in the public interest to know the name of the registered operator, section 41(1)(a) does not require consideration of the public interest. However, I do not intend to consider whether the requested name is personal data, for reasons set out below. 
 
Part 2 - Number of Inspections
Having regard to EC Regulation No 882/2004 I accept that the inspection of food businesses is an official control activity. 
 
My decision in Case No 170366 concerned the question of access to an HSE inspection report on a named restaurant. The inspection was carried out further to a complaint about alleged food poisoning. I found that the investigation carried out by the HSE amounted to preliminary investigation proceedings of the sort referred to in Article 7(3) of EC 882/2004. I found that the report is covered by professional secrecy further to Article 7(2) of EC Regulation No 882/2004. I accepted that release of the report is prohibited by law of the European Union and therefore that it is exempt from release under section 41(1)(a) of the FOI Act. 
 
In this case, however, the applicant seeks the number of inspections carried out by the HSE on the named food business.
 
Article 7(3) of EC Regulation No 882/2004 includes the "confidentiality of preliminary investigation proceedings ..." as an example of something that is "in particular" subject to "professional secrecy". It is not be necessary for me to consider whether professional secrecy extends to the number of investigations or inspections carried out as a part of preliminary investigation proceedings because the request in this case does not seek such information. Rather, it seeks the number of inspections carried out generally. It does not distinguish between inspections carried out as part of normal audit procedures and inspections prompted by any complaints that may have been received.
 
I do not consider that professional secrecy covers the general number of inspections of food premises. I believe that Article 7(2) of EC Regulation No 882/2004 does not prohibit release of such details. 
 
Turning to the HSE's arguments on the relevant domestic non-disclosure provisions, I have already explained that Article 13(2) of S.I. 117 of 2010 restricts access to information for the purposes of Article 7(1) of EC Regulation 88/2004. As already stated, Article 7(1) is not concerned with information or records arising from the specific activities. Therefore, Article 13(2) is not relevant to information concerning the general number of inspections (or indeed inspection reports). Given that I accept that professional secrecy does not cover the general number of inspections of food premises, it follows that I also consider that Article 13(3) is not  relevant to that information. 
 
In summary, having considered the provisions of Article 13 of S.I. No 117 of 2010 in the context of Article 7 of EC Regulation 882/2004, I do not consider Article 13 of S.I. No 117 of 2010 to prohibit release of the number of inspections. I believe that section 41(1)(a) does not apply to such details.
 
Summary of views on parts 1 to 3 and section 41(1)(a)
I accept that registration and inspection are control activities. I do not accept that section 41(1)(a) applies to the fact of registration or otherwise in this case, or to the number of inspections, if any, carried out. 
 
For reasons that will become clear later in this decision, I do not intend to consider whether the name requested at part 3 comprises personal data. However, if I were satisfied that this was the case, I would accept that it is covered by professional secrecy, that its release is prohibited by law of the European Union (i.e. Article 7(2) of EC Regulation No 882/2004), and that section 41(1)(a) applies. 
 
FOI requests in the form of questions
I will now address the fact that the request does not seek access to records but rather asks questions of the HSE, along with the issue of what records within the scope of the request are actually held.   
 
This Office has recently clarified and set out its position on FOI requests in the form of questions or which seek information, which can be summarised as follows: 
 
Requests for records (sections 11 and 12 of the FOI Act) vs. requests for information/questions
The FOI Act provides for a right of access to records held by FOI bodies (section 11 refers). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.
 
Thus, 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, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. 
 
Requirements in the FOI Act to create records (section 17(4) of the FOI Act)
The FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices. 
 
Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. 
 
However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act. 
 
Definition of record/granting access to records with exempt information redacted (Section 18)
The term "record" is defined in section 2 of the FOI Act as including a range of material such as books, other written or printed material in any form, maps, drawings, discs, tapes etc. It is also defined as including a copy or part of any such material.
 
Section 18(1) provides that where an FOI request would fall to be granted "but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the FOI body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy." Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). 
 
This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
 
Whether records relevant to the request exist
The request in this case seeks information, rather than records, about the specified food business. It therefore must be taken as a request for access to records or parts of records that would give the applicant the information that he seeks, or from which he could infer that information. 
 
The applicant says that he cannot understand how a public body responsible for public health cannot give a yes or no answer as to whether a food outlet is registered with the appropriate body and, if registered, has it ever been inspected. He asks "where is the public good if one does not know on entering a food outlet whether it is registered or inspected". 
 
The applicant's request asks measured and reasonable questions and I have some sympathy with his frustration at the difficulty in obtaining answers. However, my review has to be carried out strictly in accordance with the requirements of the FOI Act, including those of section 11, which as I have explained provides for a right of access to records held by FOI bodies. My review, and this decision, can only be concerned with whether records covered by a request exist in the first place and, in the second place, whether such records are exempt. 
 
In so far as records covered by the request exist, the HSE holds hard copy (paper) records containing some information of relevance to the request along with other information not covered by it. It has also produced screen shots of certain HSE database views, which also contain some information that is relevant and some that is not within the scope of the request.  At this point, I must say that I am bound by section 25(3) not to disclose the content of those records. Thus, any reference to details containing information covered by the request should not be taken as confirming that the specified food business has provided the information it is required to provide for the purposes of registration, has been registered, or inspected. 
 
In relation to section 17(4), the HSE says that it is unable to generate discrete records from its electronic systems containing only the requested information. The applicant has not disputed this.
 
Section 15(1)(a) - whether records exist/are held
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or if a record cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request, or, as in this case, that the requested records do not exist. 
 
I will deal with part 4 of the request first. The HSE says that it holds no details of the owner of the premises housing the food business because it is not required to obtain such information. I have no reason to dispute the HSE's position that it is not required to obtain and does not hold, the details concerned. I find that section 15(1)(a) applies to part 4.
 
In relation to parts 1 to 3, I have no reason to dispute the HSE's position is that it cannot produce discrete record(s) containing the requested information from its electronic databases, further to section 17(4). I find that section 17(4) is not relevant in this case. 
 
The HSE holds pieces of information relevant to parts 1 to 3 throughout hard copy (paper) records and screen shots of database views. I have considered whether the FOI Act requires the HSE to grant access to the relevant parts of those records (subject to further consideration of whether those details are exempt, of course).
 
Generally speaking, the specific circumstances and the context in which a request falls to be considered are important. For example, it may be appropriate to direct an FOI body to extract details of a particular subject matter from the minutes of a meeting of an FOI body. 
 
I have already outlined that this Office does not generally favour the cutting or "dissecting" of records for the purpose of granting access to particular words, sentences or paragraphs under section 18. More significantly, this Office considers that the primary purpose of section 18 is to ensure that FOI bodies do not refuse access to records to which access has been sought simply because they contain some exempt information, regardless of the extent of the exempt information.
 
Part 1 of Request 
In my examination of this case, I found one record which contains the information within the scope of part 1 of the request. Further, I believe that the information can be extracted from the  record in such a manner as to be a reasonable and proportionate response to the request in the particular circumstances of this case. I must stress that this observation should not taken as confirming whether the food business has provided the information it is required to provide for the purposes of registration or has been registered. 
 
Parts 2 and 3
In relation to parts 2 and 3 and in particular to the screen shots referred to above, the information is not in a form that allows me, under section 18 of the Act, to direct that the records be released in redacted form. The resulting record would be misleading. I do not consider section 18 to impose an obligation on the HSE to extract the relevant information in such circumstances.
 
While the Act provides for a right of access to records held, it also places an onus on requesters to provide sufficient particulars in relation to the information concerned to enable the requested record to be identified (my emphasis). Even if it may be reasonably straightforward to identify the records on which the relevant information is held in this case, this does not change the fact that (apart from Part 1 dealt with above) there exist no discrete records containing the information sought. Addressing parts 2 and 3 of the request would essentially require the processing of records to create records that did not previously exist. Noting that there is no express requirement in the FOI Act to extract data from records held in hard copy (as opposed to the requirement to extract data held electronically), it seems to me that the Oireachtas did not intend that FOI bodies should be required to do so. As other decisions from this Office have said, however, FOI bodies should take a reasonable and proportionate approach in determining whether to grant access to parts of records in order to address requests for information, as opposed to requests for specific, identified, records.
 
Findings on parts 1 to 4 and section 15(1)(a)
In the particular circumstances of this case, I find that the HSE is justified in refusing parts 2 to 4 of the request under section 15(1)(a) on the basis that the records sought do not exist. 
 
I am satisfied that information can be extracted from one record that contains information within the scope of part 1 of the request. While I have found that section 41(1)(a) does not prohibit the disclosure of that information, the HSE has also refused access to it under section 35(1)(b), which I will now consider. 
 
Part 1 - Duty of Confidence - Section 35(1)(b) 
The HSE argues that, further to the provisions of Article 13 of S.I. 117 of 2010, it owes a duty of confidence provided for by an enactment to the food business regarding the fact of its registration or otherwise. Thus, it maintains that section 35(1)(b) applies to such information, which it says was "gained during the inspection of food premises ... for the purpose of verifying compliance with relevant legislation ...". 
 
Section 35(1)(b) provides for the mandatory refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that schedule) or otherwise by law. 
 
However, section 35(2) is also relevant. This provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider."
 
The food business is not a service provider, and thus section 35(2) does not apply. In other words, it is possible for the HSE to owe the food business a duty of confidence regarding the details sought at part 1 of the request. 
 
However, for the reasons set out earlier in this decision, I do not accept that the fact of registration or otherwise is covered by professional secrecy. Thus, I do not accept that there is a related duty of confidence imposed on the HSE by the provisions of Article 7 of EC Regulation 88/2004 or Article 13 of S.I. 117 of 2010. I do not accept that there exists a duty of confidence in this case that is provided for by an enactment not to disclose details of the fact of registration or otherwise. I find that section 35(1)(b) of the FOI Act does not apply.
 
Thus, my conclusion is that the HSE has not justified its refusal of access to the record falling within part one of the request under sections 41(1)(a) or 35(1)(b).
 
 

Decision

 
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision.
 I affirm its refusal of parts 2, 3 and 4 of the request, although under section 15(1)(a) of the FOI Act (discrete records containing the information requested do not exist) rather than the exemptions relied on in the HSE's decision.
 
 In relation to part 1 of the request, I direct the HSE to grant access to parts of a record containing the information sought. I will identify the precise information concerned in the cover letter that I will send to the HSE along with this decision. 
 

Right of Appeal

 
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
 
 
 
Elizabeth Dolan
Senior Investigator