Case number: OIC-117936-T8B8K9
26 September 2022
In a request dated 21 July 2021, the applicant sought access to the post-mortems for Harry the silverback gorilla who died in Dublin Zoo in 2016, Lena the silverback gorilla who died in Dublin Zoo in 2018, and the post-mortems of all animals who died in Dublin Zoo between 2019 and 2021. As UCD failed to issue a decision on the request within the statutory timeframe, the applicant sought an internal review of the deemed refusal of her request. In its internal review decision dated 10 January 2022, UCD refused the request under section 37(1) of the Act. On the same date, the applicant applied to this Office for a review of UCD’s decision.
During the course of the review, this Office contacted Dublin Zoo as a third party whose interests may potentially be affected by the release of the records sought, and invited it to make submissions on the matter. Dublin Zoo subsequently made submissions opposing the release of the records, citing sections 35(1)(a) and (b), 36(1) and 39(1) in support of its position.
In its submissions to this Office, UCD cited additional provisions of the Act, namely sections 35(1)(a) and 36(1), as further grounds on which it sought to exempt the records from release. As the applicant had not had an opportunity to consider UCD’s reliance on these additional provisions, this Office wrote to her to put her on notice of same and invited her to make any submissions she wished on the matter. Subsequently, further submissions were received from the applicant, which I have considered fully in completing this review.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by UCD, Dublin Zoo and the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In its submissions to this Office, UCD said it had inadvertently omitted a reference to section 15(1)(a) of the Act, upon which it had sought to rely. That section provides for the refusal of a request where the records sought do not exist or cannot be found. It said it had carried out a search of all pathology reports using the name ‘Lena’, and that no records were found. However, it subsequently said it had carried out a further search of its records and discovered a report from 2018 that it believed related to Lena. It stated that the reason why this report did not come up in previous searches was that there was no name on the report, merely a case number, and thus earlier searches had not identified a report belonging to an animal named ‘Lena’. UCD indicated that, as per its internal review decision, this newly located record was also being withheld under section 37 (1) of the Act. In those circumstances, I do not consider it necessary to further consider the application of section 15(1)(a) in this case.
Accordingly, this review is concerned solely with whether UCD was justified in refusing access to the records sought under sections 37(1), 35(1)(a), 36(1) and 39(1) of the Act.
It is important to note at the outset that a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of the various exemptions cited by both UCD and Dublin Zoo during the course of the review, notwithstanding the fact that the provisions were not relied upon by UCD as an initial ground for withholding the records.
Analysis and Findings
The records at issue comprise pathology reports concerning various animals that died at Dublin Zoo during the period at issue, undertaken by vets from UCD Veterinary Hospital (UCDVH). As I consider section 35(1) to be of most relevance in this case, I will consider its applicability in the first instance.
UCD sought to rely on section 35(1)(a) of the Act as a basis for withholding access to the records in question, while Dublin Zoo argued that both section 35(1)(a) and section 35(1)(b) applied to exempt the records from release.
Section 35(1) of the Act provides that an FOI body shall refuse to grant an FOI request if -
a. the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
b. 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 of an enactment specified in Schedule 3) or otherwise by law.
Section 35(2) provides that;
subsection (1) shall not apply to a record which is prepared by a staff member of an FOI body 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 its staff.
As the records at issue were prepared by staff members of UCD, I deem it appropriate to first consider whether section 35(2) serves to disapply section 35(1). The question I must consider is whether the release of the records 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 its staff. It is well settled that a duty of confidence provided otherwise by law includes an equitable duty of confidence.
In the Supreme Court decision in the case of Mahon v Post Publications Ltd  3 I.R. 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd.  R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of
confidence is to succeed. First, the information itself ... must 'have the necessary
quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an
unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours”
of the equitable doctrine of confidence as follows:
“1. the information must in fact be confidential or secret: it must ... “have the necessary quality of confidence about it”;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
In previous decisions, the Commissioner stated that he understood that "detriment" could arise simply where the relevant information is disclosed without the consent of the party to whom the information relates.
In its submissions to this Office, UCD said the records at issue were created on the
basis of a confidential veterinary hospital/client relationship. It said that when Dublin Zoo engaged with UCDVH to carry out post-mortems it believed it was doing so on a confidential basis under a hospital/client relationship and on the understanding that any records created in the course of the post-mortems would be held as the confidential information of Dublin Zoo.
It said that as the UCD School of Veterinary Medicine is currently the only Veterinary School on the island of Ireland, it is essential that the hospital continue to receive such case material in order to train and educate students to the standards required by the Veterinary Council of Ireland. It argued that as such, is it vital for UCDVH to be able to continue to provide this service to its clients and for the clients to be able to rely on the integrity of UCDVH in the services they provide and, in the processing of their or their animals’ data.
Dublin Zoo said in its submissions that it routinely requested that post-mortems were completed by UCDVH on animals that died whilst in the care of the zoo. It said the arrangement in place was always on the basis that any information obtained during the procedure would be treated with absolute confidence. It said that although this arrangement was not in writing, the confidentiality requirement was derived from a veterinary practitioner’s duty of confidentiality as provided for by the Code of Professional Conduct for Veterinary Practitioners. It said UCD would not have been requested to carry out the procedure if it was possible that records could be released under the FOI Act, noting that there were many other providers of post-mortems that it could have engaged had it believed that the information would not remain confidential.
I note that the Veterinary Council of Ireland Code of Professional Conduct (VCI-CPC), updated in January 2022, states as follows under the heading “Confidentiality”:
“Veterinary practitioners must treat all dealings with clients confidentially and ensure that information acquired in the course of providing veterinary services to them is not disclosed to others without their consent”.
I also note that under the heading “Exceptions to the Requirement for Confidentiality”, the VCI-CPC provides for the disclosure of information when same is required by law.
In essence, both UCD and Dublin Zoo have argued that the release of the records would constitute a breach of an equitable duty of confidence that is owed to Dublin Zoo. It is important to note that Dublin Zoo is a registered charity and that it is not subject to the FOI Act. Having regard to the submissions of both UCD and Dublin Zoo, I accept that the disclosure of the records would constitute a breach of an equitable duty of confidence that is owed to Dublin Zoo. Accordingly, I find that section 35(2) does not serve to disapply section 35(1). Having so found, it remains for me to consider whether the records are, in fact, exempt from release under sections 35(1)(a) and/or section 35(1)(b).
It is noteworthy that the test to be met in section 35(1)(b) is essentially the same as the test set out in section 35(2). i.e. would the disclosure of the records constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision of an enactment specified in Schedule 3) or otherwise by law. As I have explained above, I accept that the disclosure of the records would constitute a breach of an equitable duty of confidence that is owed to Dublin Zoo. Accordingly, I find that section 35(1)(b) applies in this case.
While the applicant has argued that there is a significant public interest in the release of the records at issue, section 35(1)(b) is not subject to the general public interest balancing test in section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence and this Office may consider the public interest defence in the context of section 35(1)(b). The public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. In my view, the records at issue contain no such information and accordingly I am satisfied that there is no basis for setting aside the requirements of section 35(1)(b) in this case.
Accordingly, I find that the records are exempt from release under section 35(1)(b) of the Act. In these circumstances, it is not necessary for me to consider the applicability of the other exemptions cited by UCD and/or Dublin Zoo in relation to the records.
Nevertheless, while it can have no bearing on my decision, I would like to make the following comments for the benefit of UCD relating to its claim for exemption of the records under section 37(1). That section provides for the protection of personal information relating to individuals other than the requester. UCD argued that the disclosure of the records would involve the disclosure of personal information relating to Dublin Zoo. The Act defines personal information as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The Act also details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. Having regard to the definition of personal information, this Office considers that the term applies only to information about an identifiable individual, meaning a natural person as opposed to a legal person such as a company. Accordingly, I do not accept that the information at issue comprises personal information relating to Dublin Zoo.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of UCD to refuse, under section 35(1)(b) of the Act, the applicant’s request for post mortem reports for certain animals that died in Dublin Zoo.
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.