Case number: OIC-58674-Y8V1Q7

Whether the Council was justified in refusing access to the inspection records of a particular dog breeding establishment on the basis of section 32(1)(b) of the FOI Act

 

OIC-58674-Y8V1Q7

 

Background

This request concerns inspection reports relating to a named dog breeding establishment (DBE). This establishment had been subject to four inspections by the Council. Ultimately, the DBE was closed and the owner prosecuted by the Director of Public Prosecutions for animal cruelty. This resulted in a custodial sentence being handed down for the owner. There was significant media coverage at the time of the proceedings.

On 5 March 2019, the applicant submitted an FOI request to the Council for the application form and copies of the inspection reports relating to this particular DBE. On 26 April 2019, the Council refused access to the records on the grounds of concern for the safety of persons who carried out the inspections. The applicant applied for an internal review of the Council’s decision.  On 17 May 2019, the Council affirmed its original decision to refuse access to the records on the basis of section 32(1)(b) of the FOI Act. On 8 November 2019, the applicant applied to this Office for a review of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. I apologise for the length of time it has taken for this matter to reach a conclusion. In carrying out my review, I have had regard to the submissions made by the applicant, to submissions made by the Council and to submissions made by a third party who may be affected by the decision in this case.  I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

 

Preliminary Matters

There are a number of preliminary points that I wish to make in relation to procedural matters raised by the applicant and in relation to the Council’s treatment of the applicant’s FOI request.

First, I would like to note that the Council's treatment of this request was not satisfactory. The original decision did not comply with best practice as it failed to provide the applicant with a schedule of identified records or specifically identify the section of the FOI Act that the Council was relying on to refuse access to the records.  The records described under the "scope" section of this decision were identified to this Office, but apparently not to the applicant.  The CPU Code of Practice states that a schedule of records should be furnished to requesters and Section 48 of the FOI Act obliges FOI bodies to have regard to the Code in the performance of functions under the Act.  Section 13 also requires that any provision of the Act being relied upon is identified.  I would remind the Council of its obligations on these points.

In her submissions to this Office, the applicant states that this review is not a de novo consideration of the matter.  However, the courts have found that the reviews of this Office are in fact de novo.  A review by the Commissioner under section 22 of the FOI Act is considered to be de novo as it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr. Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner [2001] IEHC 116.  Similarly, In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) stated as follows: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

The applicant states that the Commissioner’s role is limited to considering the submissions and supporting evidence supplied by the parties and she contends that the Investigator was not entitled to consider material that is in the public domain in this case.  I do not accept this contention.  The Supreme Court, in the recent case of UCC v Information Commissioner & Ors [2020] IESC 28, noted at paragraphs 79 and 80 that the Commissioner “has an inquisitorial function” and that “the Commissioner has an investigative and active role in the review”.  While I have found below that it is unnecessary to rely on the information identified by the Investigator in this case, I am satisfied that it was within the inquisitorial remit of this Office for the Investigator to consider this material. 

The applicant also states that the basis on which this Office decided to consult the third party was unclear and she should be provided with the identity of the third party concerned. Section 22(6) of the FOI Act requires the Commissioner to notify inter alia any person who, in his opinion, should be notified of his proposal to review a decision of a public body. I note the applicant’s position that this Office could choose to consult with only certain third parties, which would lead to a “skewed perception” of the interests at play in a case. Having regard to the content of the records, I am satisfied that it was appropriate and in line with the principles of fair procedures to notify the third party, as that party may be affected by the decision in this case. It is not the practice of the Commissioner to inform the requester of the identity of the third party. However, the applicant was provided with a summary of new material issues contained in the third party’s submission and she made comments and observations in relation to these new material issues.

 

 

Scope of the Review

The records comprise one application to register a dog breeding establishment and four inspection reports.  The applicant’s request for an internal review did not look to appeal the refusal of the application to register a DBE. Accordingly, this review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the four identified inspection reports relating to a particular dog breeding establishment on the basis of section 32(1)(b) of the FOI Act.

 

Analysis and Findings

 

Section 32(1)(b) – Endanger Life or Safety

Section 32(1)(b) is a discretionary exemption that allows a public body to refuse to grant a request if it considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person.  In interpreting the words “could reasonably be expected to”, this Office considers that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.  As such, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

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 a reasonable expectation of such harm arising.

 

The Council’s Submissions

The Council states that there was an atmosphere of mob mentality during the trial of the DBE owner and the DBE inspectors have a very real fear that if they are publically named then they, and their families, may be considered targets.  It said that the inspectors had been subject to a barrage of hate comment on social media.  The Council states that details of the inspections had been available on the Council website, but that they had been taken down as a result of the attention surrounding the trial. The Council’s view is that by releasing the reports, as there is only a small number of inspectors, it would be similar to publically naming them and there is therefore a real possibility that their positions would become untenable. 

The Council also pointed to online abuse directed at the DBE owner and his family. Among the Council submissions were comments in the media attributed to the judge in the case where he stated “…the shocking, indeed one can say, disgusting, response there has been on social media to the tragedy that has befallen the [ ] family”. The Council also included media coverage of comments attributed to a defence barrister where she is purported to have stated that the [family] have been subjected to abuse and threats on social media, which included giving details of their address and “talk about burning them out”. The Council contends therefore that the release of the records could reasonably be expected to endanger the life or safety of the inspectors and the DBE owner and his family.

 

The Third Party’s Submissions

The third party says his family endured horrendous abuse on social media in connection with the reports. He says this abuse resulted in one family member being hospitalised due to stress and other family members requiring counselling to help cope with the abuse and death threats. The third party states that someone set fire to the entrance to his home and his family required Garda protection for the home due to death threat letters. He says he would fear for himself and his family if the inspection reports were released into the public domain.

 

The Applicant’s Submissions

The applicant says that the names of the inspectors are already in the public domain and there is therefore no point in protecting them.  She notes that evidence was given by certain inspectors during the trial and as the hearing was held in open court then the names of the officials involved are already in the public domain. She states that what is not in the public domain is the records showing how the Council carried out its statutory duties.  She goes on to note that unwarranted attention or behaviour is insufficient to meet the requirement of the Act.

The applicant states that she is not concerned with the party who ran the DBE and would not object to his name being redacted from the records. She states that she is concerned with the actions of those tasked with inspecting the facility. She states that while she has not had sight of the records, she is aware of the evidence given in respect of them. She states that the Council gave evidence that the welfare issues arose in a matter of months and were not on its radar. She says she suspects that, from the perspective of the DBE owner’s actions or inactions, the records are benign. The applicant says it must be established that there is a link between the release of the records and the expectation of harm arising, and she can see no basis that would arise in the context of bland inspection reports. The applicant states that the information provided by the third party concerns matters that have occurred and the Act is concerned with the likelihood of harm - so future events. The applicant contends that given that most of the prejudicial information has been in the public domain, she cannot see a basis on which the inspection reports would give rise to a future harm.

 

Analysis and Findings

This Office has decided on a number of cases in the past where applicants have requested records of all inspections carried out at DBE’s during a certain period of time. In many of those cases, the relevant public body redacted information that would identify individuals and released the remainder of the records. This case is different in that the applicant has requested records in relation to a particular DBE and has included the name and address of the DBE owner in her FOI request. The Council has refused access to the records in their entirety. However, even if the Council were to redact the name of the DBE owner, the owner would still be identifiable as a result of the wording of the FOI request.

I can fully appreciate the applicant’s desire for transparency around the Council’s performance of its inspection functions.  However, the question for me here is whether or not it is reasonable that release of these inspection records could endanger the life or safety of any person. While I accept that some of the information outlined is, or was, publicly available, the release of the unredacted records in this case would disclose more than that already available.  The issue is not that the release of the identities of the Inspectors and the DBE owner could give rise to the harms identified, rather it is whether or not the release of the identities of these individuals coupled with the information contained in the various reports could do so. 

In my view, given the submissions outlined above by the Council and the third party, this is a case that has already resulted in more than simply “unwarranted attention”.  I accept that the Council did not adequately provide the applicant with sufficient reasons at original decision or internal review stage, but I am satisfied based on the above that there has been considerable social media backlash against both the inspectors and the family involved in this case.  While the investigator assigned to the case also identified additional social media comments, I do not find it necessary to take these into account. I am of the view that the submissions outlined above from the Council and third party outlining significant threats and damage to property, of which the applicant was made aware, demonstrate that an expectation of future harm occurring from the release of the records in this case is reasonable.  I find therefore that section 32(1)(b) applies. 

 

Section 32(3)

Section 32(3) of the FOI Act contains a limited public interest test.  It provides that in certain circumstances, section 32(1) does not apply where the body considers that the public interest would, on balance, be better served by granting the request. The circumstances are as follows:

  • if the record discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law, or
  • if the record contains information concerning the performance of the functions of an FOI body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or
  • if the record contains information concerning the merits or otherwise or the success or otherwise of any programme, scheme or policy of an FOI body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by an FOI body.

Among other things, the applicant argued that the reports contain information concerning the performance of the functions of the Council relating to the enforcement of law. She stated that the records evidence how the Council interpret and apply the Dog Breeding Establishment Act as they should contain certain information, and where they do not contain that information then this would evidence the effectiveness of the Council’s performance in administering and enforcing the legislation. 

This Office has previously considered this issue in Case Number 170043, which also related to the inspection records of dog breeding establishments.  It was noted in that case that:

“While a reader of the reports may well form a view as to the performance of the bodies concerned in relation to how they have carried out their inspection functions, the reports are not concerned with the performance of the bodies of their functions. Rather, they are concerned with the performance of the DBEs of their functions and activities. In my view, the provision is aimed at ensuring public bodies cannot rely on section 32(1) to refuse access to records that are concerned with how those bodies are carrying out their functions. I find that section 32(3) does not apply in this case.”

The applicant submitted that this approach is incorrect.  She offered an example of an inspection record showing how a veterinary officer allowed use of particular crates, the use of which were forbidden, under Dog Breeding Establishment Guidelines.  She stated that the records therefore contained information about the performance of the vet when enforcing the DBE Act.  Consequently, the inspection record contained information about the local authority vet’s enforcement of the legislation. 

As noted in the case referenced above, a reader of the records at issue here may well form a view as to the performance of the bodies concerned in relation to how they carry out inspection functions.  However, it is my view that this subsection of the FOI Act is intended to ensure that public bodies cannot rely on section 32(1) to refuse access to records concerned with how they carry out their functions. Having considered all of the points made by the applicant, I am not persuaded from the view that these records are concerned with the performance of the DBE in question, rather than constituting a record of how the Council carried out its inspection duties.    I find therefore that section 32(3) does not apply in this case. 

 

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Council to refuse access to the records on the basis of section 32(1)(b) of the FOI Act. 

 

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Deirdre McGoldrick

Senior Investigator