Decision
Mr. X and Horse Racing Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-145232-R8D8K8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-145232-R8D8K8
Published on
Whether HRI was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records, including any records that might be held by the Irish Horseracing Regulatory Body (IHRB), relating to the revocation of the applicant’s horse trainer’s licence
14 January 2025
The applicant in this case was represented by a solicitor during the course of this review and therefore all references to the applicant in this decision should be taken to include correspondence with the applicant’s solicitor where appropriate. In a request dated 12 October 2023, the applicant submitted a request to HRI for all records relating to the decision of the Referrals Committee of the Irish Horseracing Regulatory Board (IHRB) to revoke his horse trainer’s licence. In a decision dated 15 November 2023, HRI identified three records as falling within the scope of the request. Access was granted in full to record 2 and in part to records 1 and 3 with certain information redacted under section 37 of the Act.
On 29 November 2023 the applicant sought an internal review of this decision as he considered that HRI held further relevant records. In particular, the applicant said that certain documents referred to in record 2 should have been identified as falling within the scope of his request, namely analytical reports received from a named laboratory, water sample tests and other sample results, and a written decision of the Referrals Committee. He also said that written submissions from the parties and the books containing witness statements and scientific papers as well as other material provided to the Referrals Committee should also have been identified further to his request.
In its internal review decision of 13 December 2023, HRI said the records identified in the application for internal review are records that are held by the IHRB and were not shared with HRI. It said additional searches did not identify any further records. On 17 January 2024, the applicant applied to this Office for a review of HRI’s decision on the basis that there may be other relevant records that were not disclosed.
During the course of the review, the Investigator provided the applicant with details of HRI’s submissions and informed him of her preliminary view that HRI had conducted all reasonable searches to locate relevant records She informed the applicant of her view that any relevant records that may be held by the IHRB would not be deemed to be held by HRI for the purposes of the FOI Act. She also drew the applicant’s attention to a previous determination of this Office made under section 6 of the FOI Act (Case reference OIC-53446) where this Office found that the IHRB is not, of itself, an FOI body on the basis that it is not directly controlled by HRI. She invited the applicant to make any further submissions he wished to make in relation to whether any records held by IHRB could be considered to be held by HRI for the purposes of the FOI Act. Despite a number of requests to the applicant’s solicitors, no further response was received.
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 correspondence between the applicant and HRI as outlined above and to the communications between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
In both his application for internal review and his application for review to this office, the applicant focussed solely on his concern that other relevant records apart from those already released should have been considered for release by HRI. The position of HRI is that it holds no further relevant records. In essence, this is a refusal to provide access to any further relevant records pursuant to section 15(1)(a) of the Act on the ground that no further relevant records exist or can be found. Accordingly, this review is concerned solely with whether HRI was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records relevant to the applicant’s request, other than those already released, on the ground that no further relevant records exist or can be found.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
In its submissions to this Office, HRI reiterated its position that it has identified all relevant records it holds falling with the scope of the request. With respect to the records the applicant identified in his application for internal review, it said that it has never received such records and that this has been confirmed by the IHRB as well as by internal searches. It said that upon receipt of the internal review request, it requested confirmation from the IHRB as to whether it had shared the specific records with HRI and was assured that the records are strictly confidential to the IHRB and had not and would not be shared with HRI. I note that in his application for review to this Office, the applicant said it was “concerning that IHRB appear to be in a position to only disclose documents of their choosing to the HRI and retain certain documents, and those later documents then not being subject to FOI”. As such, it appears that the applicant’s concerns are not with the adequacy of the searches undertaken within HRI as he does not dispute that the additional records sought are not physically held by HRI. Instead, his argument is that HRI should have considered certain relevant records that may be held by the IHRB by virtue of the relationship between both parties.
In his application for review to this Office, the applicant said it was “difficult to understand how those records are not held within the remit of the HRI or available to the HRI particularly where the HRI has oversight of the IHRB in circumstances where the IHRB operates under a service level agreement with the HRI in relation to the provision of integrity services”. He said the Horse Racing Ireland Act 2016 provides that HRI is responsible for guaranteeing funding to the IHRB to carry out its functions through an Integrity Services Budget which is agreed annually. He said he also understood that there is a data sharing arrangement between the IHRB and HRI.
There are two ways in which any relevant records physically held by the IHRB might be deemed to be held by HRI for the purposes of the FOI Act. First, section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed to be held by the FOI body for the purposes of the Act. A service provider is defined in section 2 as a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services, which includes an administrative arrangement between an FOI body and another person. Therefore, if the records held by the IHRB relate to a service the IHRB was providing for HRI at the date the request was made, then a potential right of access may exist.
Secondly, while the Act provides for a right of access to records held by an FOI body, section 2(5) of the Act provides that a reference to records held by an FOI body includes a reference to records under the control of that body (section 2(5) refers). Therefore, if any relevant records held by the IHRB are found to be under the control of HRI, then a potential right of access may exist.
Section 11(9)
The records at issue in this case concern an investigation undertaken by the IHRB pursuant to its responsibilities for the provision of integrity services. In its submissions, HRI said it is a body founded by statute in 2001 with responsibility for the development and promotion of Ireland’s horse racing and breeding industries to administer and govern the sport of horse racing in Ireland. It said the purpose of the IHRB is to regulate the industry and that it is responsible for the integrity of racing. It said the services provided by the IHRB are to the industry as a whole and serve to protect the Government’s investment in horse racing. It said the IHRB does not provide integrity services for HRI and is a separate organisation which is independent of HRI.
HRI said the IHRB is predominantly funded by HRI as outlined in statute. It said it is of the utmost importance to both HRI and the IHRB that there is no actual or perceived involvement or interference by HRI in the regulatory processes of the IHRB. It referenced Section 11 of the Horse Racing Ireland Act 2016 which states that the Racing Regulatory Body is “solely and independently responsible for the making and enforcing of the Rules of Racing”. It said the specific investigations, tests and proceedings referenced by the applicant are all in relation to the Rules of Racing. It said that in practice, this means that HRI is informed of the numbers and types of regulatory activity but not the specifics of any investigations or disciplinary proceedings, and that such matters are confidential to the IHRB. It said this practice of confidentiality is integral to the work of the IHRB in order to regulate the industry in an appropriate and confidential manner. It said it does not receive details of any reports from the laboratories who provide drug testing services to the IHRB. It said it does not receive details of any proceedings of the disciplinary hearings other than as made public or in summary to action any fines or suspensions. It said the records it holds in relation to the applicant have been released/partially released.
On the matter of funding, HRI said it does not monitor, oversee or have any role in the specifics of the regulatory processes other than through funding. It said that as a result of this, HRI receives information regarding the type and volume of testing compared against budget for financial oversight. It said it does not seek and is not provided with information regarding specific investigations and tests. It said this is necessary to preserve the integrity of the investigations of the racing regulatory body
Following further engagement with this Office, HRI informed this Office that there is an operational Service Level Agreement (SLA) in place between HRI and the IHRB. It said the SLA governs the statutory funding arrangement as referred to above. It provided this office with a copy of the SLA for the purposes of the review. The SLA essentially provides a framework for the funding of integrity services and sets out the agreed funding and budgeting and governance arrangements. I am satisfied that it does not comprise a contract for service in respect of the provision of integrity services.
Having considered HRI’s submissions, I am satisfied that the IHRB is an independent body with responsibility for the provision of integrity services and that it does not do so as a service provider to HRI. Section 11 of the Horse Racing Ireland Act 2016 clearly states that the Racing Regulatory Body is “solely and independently responsible for the making and enforcing of the Rules of Racing”. Moreover, while there is a clear relationship between both bodies in terms of the funding provided for such services, I am satisfied that this does not mean that the integrity services provided can be regarded as being provided for HRI. I am satisfied that the IHRB cannot be said to be providing a service for HRI within the meaning of section 11(9).
With regard to the applicant’s reference to a data-sharing arrangement between the two entities, I believe this may be a reference to section 16 of the Horse Racing Ireland Act 2016. This provision provides that HRI and the IHRB may share data, including personal data, to the extent that is necessary for the respective bodies to carry out their functions. The provision proceeds to outline the procedures for such a provision of data including the notification of the individual concerned.
Having examined this provision, I am satisfied that it is aimed at ensuring that HRI and the IHRB are able to share information, including personal information, which may be required for either entity to carry out their respective statutory functions. It is clear to me that this provision was inserted in the 2016 Act to ensure that any such sharing of information did not fall foul of the data protection legislation which was in force at the time; namely the Data Protection Act 1988, as amended by the Data Protection (Amendment) Act 2003. Indeed, section 16(12) of the 2016 Act makes specific reference to section 2D(2)(a) of the 1988 Act as inserted by the 2003 Act, which sets out detailed provisions in relation to the processing of personal data, including sensitive personal data. I do not accept the existence of such a data-sharing arrangement to be of relevance to the question of whether the IHRB is providing integrity services for HRI.
In conclusion, therefore, I find that any records coming within the scope of the applicant’s request that may be in the possession of the IHRB cannot be deemed to be held by HRI for the purposes of the Act by virtue of the IHRB being a service provider to HRI and that section 11(9) does not apply to such records.
Section 2(5)
As I have outlined above, under section 2(5) of the Act, a reference to records held by an FOI body includes a reference to records under the control of that body. As such, the question I must consider is whether any records that may be held by the IHRB coming within the scope of the applicant’s request can be deemed to be under the control of HRI.
The question of when records can be deemed to be under the control of a public body is not defined in the Act. In considering that question, this Office may have regard to matters such as the relationship between the parties and any legal rights that a party seeking to assert control over the rights might have.
As set out above, HRI’s position is that the statutory basis upon which HRI and the IHRB operate is such that the two entities operate independently of each other, save for matters relating to funding.
This Office has previously had cause to consider whether the IHRB was, of itself, an FOI body. In the course of that determination, the we examined the legislative background to the IHRB, much of which was also provided by HRI to this Office in the course of its review. In sum, the Racing Regulatory Body (now the IHRB) was established by the Irish Horseracing Industry Act 1994 with the stated aim to regulate horseracing in Ireland. The Racing Regulatory Body was defined by the Act to include the Irish Turf Club and the Irish National Hunt Steeplechase Committee, pre-existing entities which had been in existence since 1790 and 1866 respectively. Subsequently, the Horse Racing Ireland Act 2016 confirmed certain elements of the interaction between the Racing Regulatory Body and HRI. Finally, the IHRB said that HRI does not have shares in either club and has no direct or indirect control of the IHRB which is a separate legal entity.
I have examined the legislative provisions cited above, and in particular the Horse Racing Ireland Act 2016 which formally established HRI and the IHRB. Having done so, I am satisfied that it cannot reasonably be said that the IHRB is operating under the control of HRI. It is clear that the two entities operate in close concert together and, with respect to financial matters, there is a close relationship in that the IHRB receives its funding from HRI. However, I do not consider the statutory obligation on HRI to provide funding to the IHRB is such that it can reasonably said that the latter is operating under the control of the former.
Accordingly, I am satisfied that the IHRB is not a body operating under the control of HRI and, as such, any records held by it are not considered to be held by HRI for the purposes of the FOI Act.
Conclusion
As I have outlined above, Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. For the reasons I have outlined above, I am satisfied that the taking of reasonable steps did not require the HRI to consider if any relevant records held by the IHRB might fall for release. I accept HRI’s submissions that the records identified by the applicant are not held by HRI. Accordingly, I find that HRI was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records on the ground no further records can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm HRI’s decision to refuse access, under section 15(1)(a) of the Act, to any further records relating to the decision of the Referrals Committee of the IHRB to revoke the applicant’s horse trainer’s licence.
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.
Stephen Rafferty
Senior Investigator