Decision
Ms S and Cork County Council (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 160546
Published on
From Office of the Information Commissioner (OIC)
Case number: 160546
Published on
Whether the Council was justified in its decision to redact certain information from records relating to the inspection of dog breeding establishments on the ground that the release of the information could reasonably be expected to endanger the life or safety of any person and that it disclosed commercially sensitive information
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
06 October 2017
On 26 September 2016, the applicant submitted a detailed, multi-part request to the Council for access to, among other things, information and records relating to applications to register dog breeding establishments (DBEs) and inspections of those DBEs. On 19 October 2016, the Council decided to part-grant the request. Certain records were released with redactions on the ground that the release of the redacted information would involve the disclosure of personal information. Certain other parts of the request were refused on the ground that no relevant records exist or can be found.
On 21 October 2016, the applicant sought an internal review of the Council's decision to redact certain information from the records released apart from the redactions relating to third party complaints about animal welfare.
In its internal review decision of 17 November 2016, the Council affirmed the decision to redact the records at issue, but instead chose to rely upon sections 32(1)(b) and 36(1)(b) of the FOI Act to refuse access. The applicant sought a review by this Office of that decision on 7 December 2016.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Council and to the correspondence between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the records at issue. The Council scheduled the records in 7 "Tabs" and any reference to numbering of the records in this decision reflects the numbering and sequencing used by the Council.
This review is concerned solely with the question of whether the Council was justified in withholding certain information from the records released relating to DBEs under sections 32(1)(b) and 36(1)(b) of the FOI Act.
It is important to note at the outset that a review by the Commissioner under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision.
The records comprise applications for entry onto the dog breeding register, inspection reports (regarding both application, renewal and complaint inspections), improvement notices and annual declarations of veterinary staff. The records included in Tabs 1 to 3 comprise application forms and inspection reports. Tabs 4 and 5 contain records relating to improvement notices. Tab 6 contains records relating to complaints made by third parties, while Tab 7 contains annual declarations of the Council's veterinary section employees for particular years.
The information redacted from the records includes identifying details of Veterinary Inspectors and the DBE applicants, as well as information on the conditions in the DBEs and the names of some third parties, such as employees, suppliers and veterinary practices used by the establishments. The Council refused access to all of the redacted information under sections 32(1)(b) and also applied section 36(1)(b) to some information relating to the DBEs.
There was some inconsistency in the redactions carried out on the records. For instance, there were some words such as "receipts" and descriptions of medications used on the dogs that were redacted without any clear basis for their redaction. Following communications between this Office and the Council, the Council stated that it was appropriate to redact identifying information only. The Council submitted that identifying information included numbers, types of dogs and conditions of registration as this information ultimately ends up on the publicly available dog breeding register and would provide a link to the redacted reports if released.
For the sake of clarity, I will deal with the records in three groups, namely, inspection reports and improvement notices, application forms, and annual declarations.
Inspection Reports & Improvement Notices:
The Council relied upon the provisions of sections 32(1)(b) and 36(1)(b) to redact certain information from these records. Section 32(1)(b) allows an FOI body to refuse access to grant a request if it considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person. In interpreting the words "could reasonably be expected to", this Office considers that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. As such, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
Section 32(1)(b) is not commonly used and it should not be applied without careful consideration having been given to whether the expectation of endangerment is a reasonable one in all the circumstances. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such physical harm will definitely occur, but the FOI body must show that there is a reasonable expectation of such harm arising.
In its internal review decision, the Council stated that the enforcement of DBE legislation by its Veterinary Inspectors has proven to be very sensitive. It stated that in recent times a number of Inspectors have been subjected to very serious threatening and menacing behaviour while carrying out their duties under the DBE Act 2010, including threats to their personal safety and that of their families. The Council stated that it has a duty of care to the health and safety of its employees and it argued that the disclosure of the identity of specific Inspectors who prepared individual reports would present a serious and unacceptable risk to the health and safety of those employees and/or their families. The Council stated that this concern was founded on specific threats already received and due to the fact that the Veterinary Council of Ireland publishes the home addresses of all registered Veterinary Inspectors.
In correspondence with this Office, the Council added that there is also a real and genuine concern for the safety and welfare of the DBEs themselves. It referred to correspondence it received from two DBEs who expressed concerns in relation to matters they consider to be part of a targeted campaign against DBEs. It referred to specific comments in a report which, it argued, would "incite further hatred and adverse publicity of an area where there is a reluctance to apply for registration already".
In Case 160089 (Siobhan Maguire of The Sunday Times and the Health Products Regulatory Authority (the HPRA)), I considered whether the HPRA was justified in redacting certain inspection reports of premises using animals for scientific or educational purposes. Amongst other things, the HPRA sought to redact all information from the reports that might identify the various establishments and the individuals concerned, both the staff and owners of the establishments and the HPRA inspection staff. In my decision, I stated the following:
"While the vast majority of opponents of animal research are entirely peaceful, I am satisfied that there exists a small minority who are willing to use violence against those involved in such research. I am satisfied that previous examples of activists targeting the staff of organisations which are engaged in animal testing demonstrate that there is a continuing threat of abusive and violent behaviour posed by some activists...In my opinion, the disclosure of information revealing the location of the research institutions, and the identities of individuals involved in such research and engaged in inspections could reasonably be expected to endanger the life or safety of such individuals."
Subsequently, in Case 160437 (Maeve Sheehan of the Sunday Independent and Department of Agriculture, Food and the Marine), I considered whether the Department of Agriculture, Food and the Marine was justified in redacting certain identifying information from reports on inspections of DBEs held. In that case, the Department stated that "dog breeding establishments (so called puppy farms) are the subject of significant opposition and campaigning from some welfare groups" and that "... some animal rights groups may consider it legitimate to target any named/identified puppy farms with direct action/protests". In my decision, I found that similar considerations to those arising in Case 160089 applied. I stated the following:
"Commercial dog breeding has generated considerable controversy and there have been protests against individuals involved following negative media coverage. I consider that a small minority of animal welfare activists have engaged in violent and abusive behaviour in the past, and that the Department's expectation of endangerment to the safety of individuals connected with the dog breeding establishments and the inspection of same by the release of the information at issue was reasonable."
In her correspondence with this Office, the applicant put forward a number of arguments for suggesting that the Council was not justified in redacting the records at issue. Much of her argument is based on the fact that the identities of the Veterinary Inspectors are already publicly available, as are the identities of the owners of DBEs by virtue of the fact that the DBE Act requires each local authority to publish a register of DBEs situated in its functional area. Where a local authority receives an application to register a DBE the Act requires, subject to certain limited exceptions, the publication of the name and address of the applicant, the address of the DBE, the maximum number of bitches capable of being used for breeding that may be kept, and any conditions attaching to the registration.
While I accept that the information outlined is publicly available, the release of the unredacted records in this case would disclose more than that already available. It would link the individuals concerned and the specific DBEs to the actual contents of the inspection reports and improvement notices. The Council has not argued that the release of the identities of its Inspectors or of the DBEs could give rise to the harms identified. Rather it has argued that the release of the identities of the relevant staff and of the DBEs contained in the various reports could do so.
The applicant also suggested that incidents affecting the safety of Council employees are a matter for law enforcement, not the Council. She suggested that the incidents referred to by the Council may have been isolated incidents such that police involvement to investigate and, if necessary, charge the offenders will resolve the matter. While such incidents may well be a matter for law enforcement, the fact remains that section 32(1)(b) expressly allows an FOI body to refuse access to records where it considers that such access could reasonably be expected to endanger the life or safety of any person. Furthermore, as I have outlined above, the Council is not required to show that the harm identified will definitely occur. Rather, it must satisfy me that its expectations of the harm arising by the release of the information at issue is reasonable.
The applicant's arguments have not persuaded me that I should change the approach I took in Case 160437 as outlined above. It seems to me that there will be occasions where an inspection report or an improvement notice will contain adverse comments concerning the condition in which the dogs are kept that will be of concern to animal welfare activists. Given the considerable controversy surrounding commercial dog breeding, I find that the release of such reports in unredacted form could reasonably be expected to give rise to endangerment to the safety of one or more of the affected parties. I also accept that there will be occasions where inspection reports contain nothing but positive commentary. However, the difficulty with a local authority releasing such reports is that when a local authority decides not to release a report in full, inferences are likely to be drawn as to the adverse nature of such reports. In conclusion, therefore, I find that the Council was justified in deciding to redact the identifying information relating both to its Inspectors and to the DBEs themselves from the Inspection reports and the improvement notices on the ground that the release of same could reasonably be expected to endanger the safety of its Inspectors and of the staff/owners of the DBEs
I note that the applicant also argued that another Council provided similar reports completely unredacted. While that decision was entirely a matter for the Council in question, it does not alter my view that the Council's expectation of harm in this case was reasonable and that it was justified in redacting the records under section 32(1)(b).
Section 32(3) contains a limited public interest balancing test. The applicant has made a number of points that are, in effect, public interest factors in favour of releasing the records in full. However, the public interest test in section 32 is different from the general public interest balancing test that exists in a number of other exemptions in the FOI Act. In essence, under section 32(3), the public interest balancing test must be considered only in certain circumstances, namely
No argument has been made that any of the above circumstances arise in this case, nor do I consider that they arise. I find, therefore, that section 32(3) does not serve to disapply section 32(1)(b) in this case.
For the sake of clarity, I will outline what comprises identifying information. There is a considerable amount of information in these records that could be used to match the report with the publicly available dog breeding register and thus identify the establishments that are the subject of the inspection reports. Similarly, the improvement notices are based on the inspections carried out and contain similar information to that contained in the inspection reports and, in some cases, reflect the conditions subsequently published in the dog breeding register.
In the particular circumstances of this case, I find that the following information contained in the relevant records comprises identifying information and should remain redacted:
1. Names and addresses of both the Dog Breeding Establishments and the Veterinary Inspectors;
2. Licence/registration or identifying reference numbers;
3. All telephone numbers and email addresses;
4. The name, number, type and breed of dogs;
5. Any conditions of registration or notes which describe/identify a condition of registration;
6. Dates of applications where they appear in inspection reports;
7. Names and addresses of all third parties, including suppliers, staff members and veterinary practices;
8. Notes identifying membership of any particular club, such as a hunt club;
9. Dogs microchip numbers;
10. Descriptions of the locations of the premises, such as near a school or on a farm etc.
The Council also redacted additional information on the basis of section 36(1)(b). Section 36(1)(b) states that a head shall refuse to grant an FOI request 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.
As I have found above that all identifying information was appropriately redacted under section 32(1)(b), I fail to see how it would be possible for commercial interests to be affected when the identity of the establishments in the reports is unknown. In order for section 36(1)(b) to apply the public body must show how the release of the record might give rise to the harms set out in the subsection. As the identity of the establishments will remain redacted, I find that section 36(1)(b) cannot apply. I therefore direct release of any information contained in the reports and notices that is not captured by the identifying criteria described above.
Application Forms:
The application forms are applications to register DBEs, including renewal applications. The Council redacted all information relating to the identity of the applicants from the forms released under section 32(1)(b). During the course of the review, this Office asked the Council to reconsider its position in respect of these records in view of the public availability of the register of DBEs. In response, the Council stated that not all applicants end up on the register as it is dependent upon the outcome of inspections that take place following the submission of applications. It also stated that the register is a rolling register and that some breeders would subsequently come off the register after a period.
I note that all of the application forms in this case relate to DBEs that were subsequently included in the register, apart from one. In light of the requirements relating to the public register, I fail to see how the release of those forms with the disclosure of the information that was subsequently included in the register could possibly give rise to the harm identified in section 32(1)(b), even if some of the DBEs in question are no longer on the current register.
Unlike the inspection reports, which contain considerable detail surrounding the conditions of the establishment, the application forms are a sparse document reflecting the applicant's details which will ultimately be available by way of the register. Furthermore, in the case of the application that was not subsequently included in the register, I fail to see how the release of those details could give rise to the harm identified. In making the application the owner was fully aware of the fact that the application, if successful, would be included in the register. The application form, of itself, contains no indication as to why the application was not subsequently included in the register.
I note however, the some of the redacted information comprises personal information that is not required to be entered in the register, including phone numbers, signatures and email addresses. Section 37(1) provides for the mandatory refusal of a request where release of the record would involve the disclosure of personal information relating to third parties. While the Council did not rely on this exemption during the course of the review for redacting any part of the record, I do not consider it appropriate to direct the release of such information without first considering whether it is exempt under section 37(1).
Section 37(1) is subject to the other provisions of section 37, including a public interest balancing test at subsection (5)(a). That subsection provides that section 37(1) does not apply where the public interest in granting the request outweighs, on balance, the public interest in upholding the privacy rights of the individual to whom the information relates. In my view, there are no compelling public interest factors in favour of the release of phone numbers, signatures and email addresses that would outweigh the privacy rights of the individuals concerned. I find such information to be exempt under section 37(1).
The Council also redacted certain information relating to the applicable fees in respect of the various applications. I note that the applicable fee structure and relevant fee exemptions are set out in the DBE Act. As such, it is not clear to me that such information comprises personal information relating to the applicants. Even if it was, I consider that there is a public interest in the promotion of transparency and accountability in relation to the registration fees that Councils receive. On the other hand, the release of this information would have little or no impact on the privacy rights of the individuals concerned. Accordingly, I find that section 37(1) does not apply.
In conclusion therefore, I find that the Council was not justified in redacting information from the application forms, apart from the phone numbers, email addresses, and signatures of the applicants.
Annual Declarations:
Under the Local Government Act 2001, certain staff members of local authorities are required to prepare and furnish to each authority's ethics registrar an annual written declaration containing, among other things, particulars of his or her declarable interests Under section 172 of the Act, the ethics registrar must keep a public register containing, among other things, the particulars contained in the annual declarations. The register is available for public inspection and any person may apply for a copy of the register or any entry in the register. The records at Tab 7 comprise the various annual declarations completed by the Council's veterinary staff.
The Council redacted details of interests declared by various staff members in the relevant annual declarations under section 37(1) on the ground that the redacted information comprises personal information relating to the individuals concerned. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual and (xiii) information relating to the property of the individual (including the nature of the individual's title to any property).
Having regard to the definition of personal information, I am satisfied that the disclosure of the interests declared by the various staff members would involve the disclosure of personal information relating to those individuals. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, which include exceptions to the exemption. In particular, section 37(2)(c) 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, while section 37(2)(d) provides that section 37(1) does not apply if the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public. Given the nature of the information at issue, I find that section 37(1) does not apply in this case.
Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Council. I direct release of the contents of the inspection reports and improvement notices subject to the redaction of any identifying information. I direct release of the application forms subject to the redaction of telephone numbers, email addresses and signatures of the applicants. I direct the release of the annual declarations in full.
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