Decision
Mr F and the Department of Agriculture, Food and the Marine ("the Department").
From Office of the Information Commissioner (OIC)
Case number: 130050
Published on
From Office of the Information Commissioner (OIC)
Case number: 130050
Published on
Whether the Department was justified in its decision to refuse access to records, concerning an incident relating to the applicant's cattle, under the provisions of the FOI Act, including sections 10 and 27
29 September 2014
In April 2012, the applicant made an FOI request to the Department, in which he requested access to records about an incident relating to his cattle which are alleged to have died as a result of contaminated animal feed. This matter is also the subject of High Court proceedings. The FOI request incorporated 52 separate questions and included comment on various matters, with reference to previous FOI requests. Following the Department's response to the original request, the applicant made an internal review application in which he asked the Department to address 21 items/requests. Some of the items were addressed to the Department as questions, while others were requests for access to records. Following the internal review, the Department refused access to all but one of the records. For most of the records the Department relied on section 10(1)(a), section 10(1)(c) and section 27(1)(b) of the FOI Act. The Department also stated that the remainder of the records requested were refused as they were records that either had been released previously, or were held to be outside the scope of the original request. One item was granted, although the Department stated that it had been released previously.
The Department stated that this FOI request was the third such request on this issue made by the applicant since 2010. It also stated that much of the information sought in this FOI request had already been requested, sometimes more than once, and consequently, had already been considered and released to the applicant in the previous requests.
Mr. Richie Philpott, Investigator of this Office, communicated with the Department and the applicant on this matter. As a result of his communications it was confirmed that records are held by the Crop Policy, Production and Safety Division at the Department. The Department also confirmed that the file on the matter, which was forwarded to this Office, "...contains all relevant documentation pertaining to this case, and includes copies of emails, correspondence, solicitors’ letters, briefing notes etc".
In conducting my review, I have had regard to details of the submissions of the Department, to correspondence between the applicant and the Department and to correspondence between this Office and the applicant. I have also had regard to the provisions of the FOI Act.
The numbering convention associated with the decision making records of this FOI request is confusing and does not always correspond with the request stages of the applicant and the decision stages of the Department. In fact, at all four stages of this request, the references to records requested and corresponding decisions differ slightly. Consequently, I have relied on the numbering system used by the applicant in his original FOI request to the Department. With considerable effort, the original request numbers can be matched to the numbering convention employed by the Department in its internal review decision. For ease of reference, when I refer to the applicant's original request record number, I also include the Department's internal review number in parentheses. In addition, in its internal review decision, the Department on more than one occasion made two decisions relating to a single item/request. For example, for one record, the Department applied section 10(1)(a) but also decided that the request was outside the scope of the original request. In this regard, I have taken a pragmatic approach and have placed those decisions in the grouping I consider most appropriate for this decision.
The scope of this review is concerned solely with the question of whether the Department was justified in deciding that certain records are exempt from release under the provisions of section 10(1)(a), section 10(1)(c), or section 27(1)(b). I am taking it that the review can also deal with whether further records do not require to be released on the grounds that either they were previously released or they do not come with the scope of the original request.
I have considered eleven items identified at the internal review request stage where the applicant sought information but which the Department stated contained questions that sought an opinion on a particular issue, or a re-affirmation of the applicant's opinion on particular aspects of his FOI request. While the Department decided that the records do not exist, it also made additional decisions in relation to several of those requests. I do not find it necessary to consider those additional decisions of the Department. However, in my examination of this review, I concluded that several of those requests are supplementary questions by the applicant at the internal review stage and could be regarded as outside the scope of the original request. In addition, I have concluded that one request which the Department decided was outside the scope of the request, was a request to which section 10(1)(a) also applies. Consequently, I reviewed the Department's decision on the basis that section 10(1)(a) applied to the following items:
Numbers 15 (v), n/a (vi), 17 (vii), 22 (viii), 25 (ix), n/a (x), 31 (xi), 34 (xii), 38 (xiii), 39 (xiv) and 31.3 (xv).
Section 10(1)(a) of the Act provides that a head may refuse to grant a request if
"the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".
The Commissioner's role in considering section 10(1)(a) is to examine the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie).
The FOI Act confers a right of access, in certain circumstances, to records held by public bodies. In this case, it is not clear if the requests, some of which are phrased as questions, are requests for specific records, or simply requests for information. Accordingly, the issue to be decided here is whether the records exist by reference to the applicant's internal review request. However, requests should be framed in such a way as to enable the identification of the records sought (section 7(1)(b) refers). Where a request is made in the form of a question, public bodies will generally attempt to identify records which may contain answers to the questions asked.
However, the Act neither provides for a right of access to records which ought to exist, nor does it confer a general right of access to information. Furthermore, it does not require a public body to create records. If the information required by an individual is not contained in a record, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the relevant information.
In its submission, the Department provided details of the search processes it used concerning the records requested. In particular, it stated that files that were first checked in response to the original request were re-checked and files that were previously released were also checked to ensure the Department had not omitted to release records at that time. The Department also responded to additional queries from this Office about the records to which its decision under section 10(1)(a) applied. As I mentioned earlier, the Department confirmed that the file on the matter which was forwarded to this Office, "...contains all relevant documentation pertaining to this case".
The position of the Department is that the "records" sought are mostly questions posed, opinions or requests for clarification/ information. Consequently, the Department says that in this context, it cannot find any further records covered by these parts of the applicant's FOI request because they do not exist. Accordingly, having reviewed the steps taken by the Department to locate the records and its responses to this Office's queries, I am satisfied that it has taken all reasonable steps to locate the records sought. I find that section 10(1)(a) of the FOI Act applies to the records listed above.
Section 27(1)(b) provides that a head shall refuse to grant a request under section 7 if the record concerned contains-
"financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation".
In his original request to the Department, at number 9 (ii), the applicant sought access to the “nature, quality and contents of the “vegetables” supplied by [a third party]". In addition, the applicant also sought access, at number 31.5 (n/a), to the name of the supplier to the third party and information on storage of the feed stuff by the third party and, at number 31.6 (n/a), to the “traceability documents” of the feed stuff supplied to the applicant. At internal review stage however, the applicant questioned the Department’s decision and while it is not clear if the applicant appealed all three original queries, I am taking it that he did. In any event I interpret the internal review decision of the Department as refusing access to records associated with all three original requests by reference to section 27(1)(b).
Following a query from this Office, the Department originally stated that the source of the feed stuff came from one of only four feed business operators (FBOs) operating in Ireland. The Department's argument for commercial sensitivity was that disclosure of information about the costs, quantities and prices of various transactions and the limited number of FBOs in Ireland, “may have placed the FBO at a competitive disadvantage...”.
However, that response does not address the subject matter of the original request which was for access to the name of the “supplier”, the “nature, quality and contents of the “vegetables”, and any “traceability documents” relating to a supply of feed stuffs to the applicant prior to the unfortunate events at his farm, on or around 23 September 2010. This Office requested a copy of the records to which section 27(1)(b) was applied. However, the records supplied by the Department in response comprised a sampling report only which is dated as having been created on 1 November 2010 and concerning a sample dated 29 September 2010. As such, the record supplied - said by the Department to relate to the applicant’s requests at numbers 9 (ii), 31.5 (n/a) and 31.6 (n/a) - is not relevant and in fact, post-dates the incident on the applicant's farm. Furthermore, the record supplied to this Office by the Department was released previously to the applicant. The record supplied by the Department clearly is not what the applicant requested; I find that section 27(1)(b) does not apply to that record.
The question remains as to whether the Department holds a record(s) which can be considered for release which includes details of the “supplier”, the “nature, quality and contents of the “vegetables”, and any “traceability documents”. The Department was asked on several occasions to provide the records which were the subject of the requests at numbers 9 (ii), 31.5 (n/a) and 31.6 (n/a). In a reply of 17 July 2014, and in follow-up communications with this Office, the Department stated that the only records specifically referring to the composition of mixed vegetables are the sampling reports and results. Consequently, I have concluded the Department referred to section 27(1)(b) in error and that in fact, no such records are held by the Department. I find therefore, that section 10(1)(a) applies to records no 9 (ii), 31.5 (n/a) and 31.6 (n/a).
The Department refused access to two items in the applicant's request on the ground that section 10(1)(c) of the FOI Act applied. Those items are referenced as 31.11 (xviii) and 31.13e (xix). In 31.11 (xviii), the applicant asked the Department to state how it complied with EU regulation or National legislation. In 31.13e (xix), the applicant sought access to records of all actions taken by the Department on inspections, audits and analysis of feed stuff. The Department's decision was that both requests covered voluminous records.
Section 10(1)(c) of the FOI Act provides that a request for a record may be refused if
"...granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of the public body concerned"
The Department contends that it would cause a substantial and unreasonable interference with or disruption of its work to locate and release the records in relation to the applicant's request. While section 10(1)(c) provides that a request for a record may be refused as so described, section 10(2) provides that a request shall not be refused under section 10(1)(c) unless the public body has assisted, or offered to assist, the requester concerned in an endeavour so to amend the request, so that it no longer falls within the parameters of section 10(1)(c).
The Department made this decision at the internal review stage only and there is no reference, either in correspondence with the applicant or with this Office, of any attempt made by the Department to engage with the applicant to narrow the scope of the request so that it would no longer fall to be refused under section 10(1)(c). A public body cannot rely on section 10(1)(c) where it has not complied with the requirements of section 10(2) of the FOI Act, which requires the provision of assistance, or at least an offer of assistance, by a public body to a requester in order to amend the request.
The applicant and the Department were informed by this Office of the requirements of section 10(2) and neither party stated that any consultation had occurred. Consequently, I consider that the decision of the Department should be annulled. The effect of this is that the Department is required to make a new, first instance decision in respect of the applicant's original request items at 31.11 and 31.13e.
The Department stated in its internal review decision that three records were previously released. The relevant records are referenced by the applicant as 4 (i), 12 (iii) and 31.9 (xvii). I have no reason to conclude that the applicant has not received those records. As explained earlier in this decision, any contention that such records should contain additional information cannot be examined in this review.
In his internal review request, the applicant requested several items which the Department decided were not within the scope of the original request. In examining those items I am satisfied that the Department is correct in its decision, with respect to three of those items. These are (n/a) (iv), (n/a) (xx), and (n/a) (xxi). However, as mentioned earlier, the unrelated numbering employed by the applicant and the Department is confusing when attempting to associate all of the original requests for records with the decision at internal review. It is clear to me that several of the items were requested only at internal review stage and overlap with other requests. On balance, I have concluded that the items listed above are outside the scope of this request.
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department as follows:
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Elizabeth Dolan
Senior Investigator