Decision
Mr. Ken Foxe of Right to Know CLG and Greyhound Racing Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-108629-X1K9Y7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-108629-X1K9Y7
Published on
Whether GRI was justified in refusing access to records relating to a retired racing greyhound and its export to China.
20 September 2021
On 31 March 2021, the applicant made a request to GRI for copies of all records, from 1 January 2020 to the date of his request, relating to a specified retired racing greyhound and its export to China. Following an exchange of correspondence between the parties, the applicant refined his request to the following:
“- investigation report (or investigation reports) into the named greyhound’s case.
- any correspondence with the Irish Coursing Club about the classification of greyhounds as "rehomed" when they have been exported. This would be any correspondence that was not released to me as part of the previous request regarding [a different greyhound].
- also, if it was possible to get an update on what is being done to try and ensure the ICC records more accurately reflect the export of animals”.
On 12 May 2021, GRI decided to part-grant the request. It identified six records as falling within the scope of the request, and granted access to those records with certain information redacted pursuant to section 37(1) of the FOI Act. On the same date, the applicant sought an Internal Review of GRI’s decision. On 2 June 2021, GRI issued its Internal Review decision, wherein it affirmed its original decision. On 4 June 2021, the applicant sought a review by this Office of GRI’s decision.
This review is concerned solely with whether GRI was justified, under section 37(1) of the Act, in redacting certain information from the records released.
GRI sought to rely on section 37(1) of the Act as the basis for redacting certain information from the records at issue, each of which comprises a thread of email conversations between representatives of GRI and various external parties relating to the export of greyhounds to China.
Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of
his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (xii) the name of the individual where it appears with other personal information related to the individual, or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned or relates to the individual, and (xiii) information relating to property of the individual (including the nature of the individual's title to any property).
Certain information is excluded from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or 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 aforesaid ...".
The information that has been redacted from the records at issue in this case includes details of certain greyhounds and the names and addresses of their owners, names and/or mobile phone contact details of a number of third parties.
In its submissions to this Office, GRI noted that the FOI request under appeal related to a specified greyhound and any correspondence with the Irish Coursing Club about the classification of greyhounds as "rehomed" when they had been exported. It said that, except for the specific request related to the named greyhound, the request related to the classification of greyhounds, not the identity of greyhounds. It said comprehensive information was provided to the applicant regarding the named greyhound and GRI’s position regarding greyhound welfare and exports. It argued that a list of greyhounds listed under the heading ‘Greyhounds alleged to have been exported to China’ was provided to GRI as part of a parliamentary question and that the record did not originate with GRI. It argued, therefore, that this element fell outside the scope of the applicant’s request.
I do not accept GRI’s argument. In my view, any attempt to distinguish between information relating to the classification of greyhounds and the names of those greyhounds is to interpret the request too narrowly. Such an interpretation would not be in keeping with the purpose and intent of the FOI Act, which is to enable members of the public to obtain access, to the greatest extent possible, to information in the possession of public bodies.
On the substantive issue of whether the names of the greyhounds and details of their owners comprises personal information, GRI argued that the disclosure of the name of a greyhound would likely establish that the personal information held by the FOI body relates to the individuals concerned. It argued that the information related to the property of registered greyhound owners in the context of private sales outside the jurisdiction. It said the context and circumstances are such that this element of personal data would only be known by the individuals concerned or members of the family or friends of those concerned, or those to whom greyhound owners make it known, of their own volition. It
said this was not the same information made available by GRI for racing purposes and disclosed to the racing public on a race program and the GRI website when a greyhound races at a greyhound track. It said the information specifically requested would not generally be publicly available as it relates to private sales between greyhound owners and the buyers of the greyhound at the time of sale. It said there is a requirement under the Greyhound Welfare Act 2011 that the transfer of ownership be registered with the Irish Coursing Club.
In his correspondence with GRI, the applicant argued that the names of greyhounds could not constitute personal information as the registration, ownership, and status of such animals are matters of public record. I do not accept the applicant’s argument. It is important to note that in the case ofThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner [2011] IESC 26 (more commonly referred to as "the Rotunda Hospital case"), the Supreme Court held that paragraphs (a) and (b) of the definition of personal information are not "overarching prior requirements", and that information falling into the categories set out at (i) to (xii) constitutes personal information, even if neither of the requirements of paragraphs (a) or (b) are satisfied. The FOI Act 2014 extended the number of those categories to 14. In simple terms, if the information falls within any of the 14 categories of information specified, then it is personal information for the purposes of the Act.
As GRI stated in its submissions, disclosure of the names of the greyhounds identified in the records would disclose information relating to the property of registered greyhound owners in the context of private sales outside the jurisdiction. I find that section 37(1) applies to the names of the greyhounds and the details of their owners. I also find that section 37(1) applies to the remainder of the information redacted from the records at issue, apart from the following:
However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37. In particular, section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. Section 37(2)(c) of the Act provides that section 37(1) does not apply if information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. As I have outlined above, the applicant argued that the names of greyhounds could not constitute personal information of individuals, in circumstances where the registration, ownership, and status of greyhounds were matters of public record. In its submissions, GRI addressed this point, stating that the information sought by way of this request – relating as it did to the movement/private sale, transfer, or transport of greyhounds outside the jurisdiction – was not the same information made available by GRI for racing purposes and
disclosed to the racing public on a race program and the GRI website when a greyhound races at a greyhound track. GRI stated that the information specifically requested would not generally be publicly available as it relates to private sales between greyhound owners (seller) and purchaser of the greyhound at the time of sale. I accept this argument and find that section 37(2)(c) does not apply. I am further satisfied that none of the other provisions of section 37(2) apply in this case.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individual to whom the information relates.
In his application to this Office, the applicant argued that public interest in this issue was strong given that the greyhound in question ended up racing in China where, he argued, animal welfare issues are a very significant issue. He argued that there was a significant issue surrounding the process by which retired greyhounds were being registered in Ireland where dogs are listed as being "re-homed" when they were being sold off for racing/coursing use in countries with atrocious animal welfare records.
In its submissions to this Office, GRI agreed that animal welfare including greyhound welfare was a matter of public interest, but argued that this was not what was at issue in the applicant’s request. It said it had provided a detailed response to the applicant on the specific subject matter of his request as it related to the specified greyhound and in relation to how GRI dealt with greyhound welfare issues. It said that while an issue may be a matter of public interest, this should not automatically mean that it overrode individuals’ rights in relation to their personal information.
GRI further noted that, as the regulatory body for the greyhound racing industry, it was opposed to exports to countries that did not meet Ireland’s welfare standards. It stated that it continued to advise owners to only export to destinations that provide the expected levels of greyhound welfare as set out in its Code of Practice. GRI explained that it did not have any role or control over the private sale or transactions of private citizens regarding the sale and purchase of greyhounds, and nor did it have any control over events outside the jurisdiction of Ireland. It said it had no statutory function regarding the regulation of greyhound exports, and that it was not unlawful or a breach of the Welfare of Greyhounds Act 2011 for greyhound owners to sell or transport their greyhounds outside the jurisdiction, including to China.
GRI further explained that it did not have any role in relation to maintaining ownership details on any greyhounds, which fell within the remit of the Irish Coursing Club, which had statutory responsibility for maintaining the Irish Stud Book. GRI argued that the assertions made by the applicant did not outweigh the right of individuals to the protection of their personal information as provided for under the FOI Act. It said that information related to breaches of greyhound welfare legislation is published at the appropriate time by GRI on its
website, which, it argued, satisfied the public interest in the matter. It noted that individuals subject to investigation under greyhound welfare legislation were entitled to due process and fair procedure, and that it would be inappropriate to publicise the names of greyhounds to the world at large by way of releasing these details to the applicant. GRI stated that if breaches of Section 10 of the Welfare of Greyhounds Act 2011 by a seller were identified by GRI, and the offence was committed within the previous 12 months, then Welfare Officers would issue a fixed payment notice. It added that information on the number of fixed payments notices issued over the last 5 years for breaches of Section 10 of the Welfare of Greyhounds Act was available to the public on its website.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet Case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore 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 have considered the public interest arguments made by both parties in this case. It seems to me that GRI has attempted to strike an appropriate balance by providing information on the way in which it handled the particular matter and by providing explanatory information concerning the limitations of its functions in relation to the export of greyhounds, whilst seeking to protect the privacy rights of the individuals concerned. Having regard to the nature of the information at issue and to the fact that the release of information under the FOI Act is, in effect, release to the world at large, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the public interest in upholding the right to privacy of the individual(s) to whom the information relates.
I find that section 37(5)(a) does not apply in this case. I consider, therefore, that GRI was justified in refusing access, under section 37(1), to the material it redacted from the records,
apart from the information identified above to which I have found section 37(1) not to apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of GRI in this case. While I find that it was justified in redacting, under section 37(1) of the Act, the majority of the information at issue, I find that it was not justified in redacting the name of an official of the Department of Agriculture, Food and the Marine from Record 4 or the second paragraph of an email on page 1 of Record 5. I direct the release of that information.
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 applicant 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.
Stephen Rafferty
Senior Investigator