Decision
Mr Z and the Department of Agriculture, Food and the Marine (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170409
Published on
From Office of the Information Commissioner (OIC)
Case number: 170409
Published on
Whether the Department was justified in refusing access to (a) the name and address of the individual who made an animal welfare complaint against the applicant and (b) information on the reason for the Department's inspection of the applicant's farm on two occasions, under section 15 (1)(a) of the FOI Act on the ground that no further relevant records containing the information sought exist
Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
18 December 2017
This review has its background in a visit undertaken by two Inspectors of the Department to the applicant's farm in March 2017. According to the applicant, this was the second year in a row that a visit was undertaken without prior warning and that the visit was undertaken as a result of a complaint having been made in respect of his care of his cattle. On 6 April 2017, the applicant submitted a request, through his solicitor, made an FOI request for the name and address of the individual who made the complaint and for the reason for the call by the inspectors to his premises on two occasions.
On 8 June 2017, the Department issued a decision in which it refused access to the information sought under section 35 of the FOI Act on the ground that it was given in confidence. On 29 June 2017, the applicant sought an internal review of the Department's decision. In its internal review decision dated 18 July 2017, the Department varied the original decision and found that section 15 (1)(a) applied, as no record existed that contained the information sought, as the complaint was made anonymously. On 22 August 2017, the applicant sought a review by this Office of the Department's decision.
During the course of the review, the Department agreed to release a record which this Office considered to come within the second part of the applicant's request as it contained details as to the reason for the Department's inspection in 2017. However, it did not release a similar record relating to the 2016 as it considered that the applicant's request related to the 2017 visit only.
I consider it appropriate to conclude this review by means of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter and to the contents of the records identified by the Department relating to the applicant during the course of the review.
While the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.
Accordingly, I consider the applicant's request for information to be a request for access to any records that contain the information sought.
This review is therefore concerned solely with whether the Department was justified, under section 15(1)(a), in refusing access to any records that contain (a) the name and address of the individual who made an animal welfare complaint against the applicant or (b) information on the reason for the Department's inspection of the applicant's farm on a previous occasion, on the ground that no further records exist apart from the record that was released during the course of the review.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this 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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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 FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.
The identity of the complainant
The Department stated that no record exists that contains the name and address of the complainant as the complaint was made by an anonymous phone call. The Department said it consulted relevant staff who confirmed the complainant was unknown. When the complaint was made, details were recorded on the Departments Agriculture Field Inspection and Testing (AFIT) system by the Veterinary Inspector on duty that day who took the call and subsequently carried out the inspection. It stated that the only record of the inspection was the 2017 AFIT file which was released to the applicant during the course of the review, and which indicates that a call was received "from a concerned member of the public".
I note that the applicant expressed surprise that the Department would act on an anonymous report. However, the Department has stated that all anonymous complaints are investigated and treated in the same manner as if the complainant was known. Having regard to the Department's explanation of the matter and to the contents of the 2017 AFIT record already released, I am satisfied that no relevant records exist that contain details of the identity of the complainant as sought by the applicant. I find that the Department was justified in refusing the first part of the applicant's request under section 15(1)(a).
The reasons for the visits
As I have outlined above, while the Department identified a 2016 AFIT record relating to the inspection undertaken in 2016, it did not release the record as it considered that the applicant's request related to the 2017 visit only. The wording of the applicant's request is clear. He sought the reasons for the call made by the inspectors to his premises on two occasions (my emphasis). Having examined the 2016 AFIT record, I am satisfied that it contains information relating to the reasons for the visit in 2016 under the heading "Visit Details".
I note that the Department has not argued that the record is otherwise exempt. I find, therefore, that the Department has not justified its decision to refuse access to further relevant records relating to the second part of the applicant's request under section 15(1)(a). I direct the release of the 2016 AFIT record.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I affirm the decision of the Department to refuse access to the name and address of the complainant, under section 15 (1)(a) of the FOI Act. I find that the Department was not justified in refusing access, under section 15(1)(a), to the 2016 AFIT record which I consider to contain information about the reason why an inspection was undertaken on the applicant's farm on two occasions. I direct the Department to release the 2016 AFIT record.
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