Decision
Mr Ken Foxe, Right to Know CLG and Inland Fisheries Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-132460-B7L8V6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-132460-B7L8V6
Published on
Whether IFI was justified in refusing access in part to a record containing various details of suspected or actual fish kill or pollution events in 2020, 2021 and part of 2022, on the basis of sections 30(1)(b), 32(1)(a)(iv) and 37(1) of the FOI Act
9 April 2024
In a request dated 29 August 2022, the applicant sought access to a database, spreadsheet, record or list of all suspected or actual fish kill/pollution events reported to or investigated by IFI in 2020, 2021 and to date in 2022. He specified that he sought the location, a brief narrative description of the event, the scale of the fish kill, the suspected cause, and the outcome of any resulting proceedings.
On 21 September 2022, IFI informed the applicant that it was extending the period to consider his request by four weeks under section 14(1)(a) of the FOI Act. In a decision dated 24 October 2022, IFI identified one record, an Excel spreadsheet which it described as the “Fish Kill Database”. It decided to grant partial access to the record on the basis of sections 30(1)(b), 32(1)(a)(iv) and 37(1) of the FOI Act.
On 25 October 2022, the applicant sought an internal review. He stated that while he accepted that “some information relating to the standing/current status of a proposed or actual investigation may be exempt”, he did not accept that “the mere existence/location of a fish kill” could fall into the same category. On 16 November 2022, IFI affirmed its original decision on the same grounds.
On 17 November 2022, the applicant applied to this Office for a review of IFI’s decision.
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 parties as set out above, to the applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.
The record concerned is a spreadsheet with information under various headings including the name of the relevant Regional Fisheries Board and the relevant River Basin District (RBD); whether a fish kill had been confirmed; the year and specific date; the type and name of the water body concerned; the general location and specific co-ordinates; the distance and extent of the mortality, including the species and numbers killed; details of the suspected or confirmed cause and related comments; the name of the relevant IFI officer; whether a prosecution was pending; and 21 columns recording the fish species involved in each incident. The copy of the record provided to this Office was not numbered. For ease of reference, I have used IFI’s numbering scheme referred to in its submissions to this Office. IFI initially released the record sought subject to the redaction of information from a number of rows, as follows:
During the course of this review, IFI informed this Office that circumstances had changed in some of the cases relating to the information withheld. Accordingly, it provided this Office with an updated version of the record sought with the redactions below. I understand that IFI is willing to release the updated version of the record to the applicant. If it has not already done so, I would expect it to make arrangements to release it now.
I note that the updated spreadsheet provided to this Office during this review by IFI has additional information redacted from rows 9, 22, 23, 44 and 45 other than that which was withheld from the record released to the applicant (i.e., RBD, Fish kill confirmed yes/no, year and waterbody type). As it appears that this information has already been released, I am proceeding on the basis that this was an error. For that reason, the information contained in the first four columns of each of these rows will not be considered as part of this review.
In response to a further request for clarification, IFI provided this Office with an update on the position of the cases relating to rows 6, 9, 22, 23, 37, 44 and 45, which will be considered below.
Accordingly, this review is solely concerned with whether IFI was justified in refusing to grant access to the remaining information withheld from the record sought on the basis of sections 30(1)(b), 32(1)(a)(iv) and 37(1) of the FOI Act.
It is important to note, as a preliminary matter, that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on IFI to satisfy this Office that its decision to refuse access to the record sought in part was justified.
I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
However, while FOI bodies must justify their decisions, the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”) in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse through an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
Section 14
In his application for review to this Office, the applicant queried IFI’s reliance on Section 14 to extend the time taken to consider his request in this case. He stated that only a single record had been identified and that, in his view, it was “incredibly unlikely” that there was a “large volume of requests for the same record”.
Section 13(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. However, section 14(1) provides that a body may extend the period for consideration of a request by up to four further weeks in certain circumstances, including where the request relates to such number of records that compliance with the four-week period is not reasonably possible.
Section 14(2) provides that where a period is extended the body must, before the expiry of the four-week period prescribed in section 13, notify the requester of the extension, the period of the extension, and the reasons for the extension. In its notification to the applicant, I note that IFI stated that “[a]ll IFI Environmental Officers of which there are currently 17 are being contacted and [a] search for records pertaining to your request is currently ongoing along side their regular duties”.
It is not clear to me from the above whether IFI met the requirements of section 14 in this case. However, an application for a review of IFI’s decision to extend the time to consider the applicant’s request would have had to have been made by the applicant within two weeks of the notification letter, which was dated 21 September 2022. Accordingly, IFI’s reliance on section 14 will not form part of this review.
IFI refused access to the record sought in part under sections 30(1)(b), 32(1)(a)(iv) and 37(1) of the FOI Act.
During the course of this review, IFI provided status updates concerning each of the rows concerning cases where a prosecution had been initiated.
The remaining information withheld by IFI and under review is as follows:
Section 37(1) - Personal Information
Section 37(1) is a mandatory exemption relating to the personal information of third parties other than the requester. In the circumstances of this case, I will consider this exemption in the first instance.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information including (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, (xii) the name of the individual where it appears with other personal information relating 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 relates to the individual, (xiii) information relating to property of the individual (including the nature of the individual's title to any property) and (ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose.
In its original and internal review decisions, I note that, while it did not specify the relevant row numbers, IFI indicated that it considered section 37 to apply to the location of a number of fish kills listed in the record sought. It stated that the information withheld on this basis comprised the locations of sites which might identify an individual/third party from whom it had not received consent to release their personal information. It also stated that in other instances, the information had been withheld as a prosecution/case file had not been formally prepared and brought before the courts.
In its submissions to this Office, IFI indicated that it considered section 37 to apply to the specific co-ordinate information withheld from release in relation to fish kills which had not been the subject of a prosecution (i.e. rows 1-5, 29-36, 38-43 and 46). However, having regard to the information provided by IFI during the review in relation to the landowners concerned and the status of the cases prosecuted to date, I am satisfied that section 37 is also relevant to the co-ordinate information withheld from rows 9 and 45, which concern individual landowners. Therefore, I shall consider the application of section 37 to rows 1-5, 9, 29-36, 38-43, 45 and 46 below.
I am also satisfied, on foot of additional information received from IFI, that the cases relating to rows 6, 22, 23, 37 and 44 were taken against state-owned or private companies and/or a public body and do not concern identifiable individuals or landowners, and that accordingly, section 37 is not relevant to these rows.
During the course of this review, IFI said that the particular information in the record withheld on the basis of section 37 was contained in the five columns containing the coordinates of the exact location of a confirmed/suspected fish kill (i.e.: Coordinates_Orginal; easting_ig; northing_ig; easting_itm and northing_itm). It stated that it withheld this information in relation to cases where there was no ongoing court case or potential criminal proceedings, as in that context, it comprised “personal data under Article 4 of [the] GDPR”. IFI did not expand further in its reasoning in this regard. It is important to note that while IFI cited the definition of personal data as set out in Article 4 of the General Data Protection Regulation in its submissions to this Office, the FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.
IFI stated that the individual owners of land adjacent to specific fish kill incidents could be identified by the taking of reasonable steps. It said that coordinates can be viewed through certain websites which would allow someone to pinpoint the exact location of an individual fish kill. It also said that this information could be used in conjunction with another website, which gives the title and ownership details of land and/or property. It stated that such sites are freely accessible by the public.
In his request for internal review and application for a review to this Office, the applicant did not make any arguments in relation to IFI’s reliance on section 37 in this case.
I have carefully examined the record in question, and had regard to the context of its creation. Some general information relating to the incidents in the rows in question may have been reported in the media, or be otherwise in the public domain. However, this does not, of itself, mean that section 37 cannot apply. Furthermore, while the record concerns IFI’s investigation and enforcement of its powers under various acts, including the Fisheries (Consolidation) Act 1959, the Local Government (Water Pollution) Act, 1997 and the Local Government (Water Pollution) (Amendment Act) Act, 1990, I am satisfied that it was created in the context of identifying and prosecuting the third parties responsible for these matters. I am also satisfied that the record contains information relating to the property of various identifiable individuals, as well as to the commission or alleged commission of an offence by some or all of them. Having regard to the nature of the information at issue and the simple steps required to identify the landowners concerned, I am satisfied that information about an individual’s land, which was the location of a fish kill that was considered for prosecution by IFI, relates to the personal information of an individual.
In the circumstances of this case, I accept that the co-ordinate information withheld from rows 1-5, 9, 29-36, 38-43, and 45-46 relates to the property of persons other than the requester and/or to the commission or alleged commission of an offence by the individual(s) in question and that the release of the information in question could reasonably be expected to identify the individuals concerned. Accordingly, I find that section 37(1) applies to this information.
However, that is not the end of the matter, as I must also consider the other provisions of section 37.
Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the record does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.
Section 37(5)
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. No argument has been made that the release of the information at issue in this case would be to the benefit of the individuals to whom the information relates, nor is it apparent to me how release would do so. I find that section 37(5)(b) does not apply.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, such as under section 37(2)(a), FOI is not about granting access to information to particular individuals only. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned. In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in the Enet case, which 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.
On the other hand, 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
In this case, the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh, on balance, the privacy rights of the individuals concerned. I note that in his original request, he simply described the records sought. In his internal review application, which he subsequently indicated was relevant to his application for a review to this Office, the applicant argued that the release of information confirming that a fish kill occurred at a particular location would not in of itself compromise any investigation or process that IFI was involved in.
IFI indicated that it considered the following public interest factors in favour of release:
It also considered the following factors against the release of the relevant co-ordinate information:
While I have had regard to the public interest factors identified by IFI, it seems to me that there is a public interest in the public knowing that IFI is carrying out its functions adequately in relation to its investigations into the causes of fish kill incidents and the prosecution of relevant individuals or organisations. However, while I accept that the release of the information concerned would serve to somewhat enhance transparency around the IFI’s investigative and prosecutorial functions in relation to fish kills, it seems to me that the degree of enhancement would be quite limited. On the other hand, the records at issue reveal that fish kills occurred at the locations in question and that some of the individuals concerned were at the very least suspected of, if not prosecuted for a criminal offence.
This Office has found in previous cases that the right to privacy is on a spectrum. I am satisfied that the release of information which could reasonably be expected to identify individuals who owned the land where a fish kill occurred could reasonably be expected to prejudice the reputations and good standing of the individuals concerned. I am satisfied that this could be the case whether a prosecution was carried out or not. Furthermore, it is also important to note that the majority of this information relates to incidents where no prosecution was pursued. I must regard the release of this information as being effectively, or at least potentially, to the world at large. In the circumstances, I am satisfied that disclosure of the co-ordinate information contained in rows 1-5, 9, 29-36, 38-43, and 45-46 would be a significant breach of the right to privacy of the individuals concerned. I do not accept that the limited public interest in releasing the information in question outweighs, on balance, the significant privacy rights of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply.
I will now consider the remaining information which I have not already found to be exempt under section 37 above, as follows:
For ease of reference, the remaining columns at issue, other than the co-ordinate information, contain the following information: date; name of relevant water body; general location; the distance of water affected; RFB; fishery district; the geographic extent of the incident; the species and number killed; details of the suspected or confirmed cause and related comments; the relevant IFI officer; whether a prosecution was pending and 21 columns recording the fish species involved in each incident.
Section 30(1)(b)
Section 30(1)(b) of the FOI Act provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard in section 30(1)(a) and other sections of the FOI Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.
A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Commissioner does not have to be satisfied that such an outcome will definitely occur. 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. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations. Section 30(1) is subject to a public interest balancing test at section 30(2).
In its original and internal review decisions, IFI stated that “[t]he fish kill incidents are currently subject to or are being actively considered for legal proceedings”. It stated that the timing and/or stage of the investigation was a “relevant consideration” in applying section 30(1)(b) and that it had considered the current stages of the legal processes in each case. It said that the record concerned contained information which “directly related to the commission of offences which are currently the subject of an ongoing prosecutions or potential cases and there is a strong possibility that criminal prosecutions will result”. Its position was that the release of the withheld information relating to the particular fish kills would adversely affect its performance in regard to its functions under Section 7(1) of the Inland Fisheries Act 2010.
In its initial submissions to this Office, IFI stated that the remaining information at issue related to incidents which were subject to or being actively considered for legal proceedings and/or there was a strong possibility that criminal prosecutions would result. During the course of this review, IFI clarified that the court cases in relation to rows 6, 23, 44 and 45 had been heard and concluded and that the cases set out in rows 22 and 37 had started and that much of the information relating to row 37 was now in the public domain. I also note that the case in relation to row 9 had been initiated and was awaiting a court date.
In its submissions to this Office, IFI stated that its principal functions under Section 7(1) of the Inland Fisheries Act 2010 were “the protection, management and conservation of the inland fisheries resource”. It stated that these functions would be adversely affected by the release of the information withheld. It also referred specifically to its protection function in enforcing its powers under the Fisheries (Consolidation) Act 1959, the Local Government (Water Pollution) Act, 1997 and the Local Government (Water Pollution) (Amendment Act) Act, 1990, in relation to a reported fish kill. It further stated that if a prosecution was adversely affected, this in turn would adversely affect its conservation function in relation to “habitats and fish species in our inland water ways”.
IFI stated that the release of the information concerned would “make relevant parties aware that a prosecution [may be] under consideration in relation to a reported fish kill”. It stated that this could “potentially undermine” its ongoing prosecutions and “potential criminal proceedings”, thereby adversely affecting its enforcement powers and protection function. It stated that release of the record in full would “significantly affect [its] ability to bring successful prosecutions through [the] court systems and undermine [its] ability to protect and conserve our inland waterways as per its functions”.
IFI also contended that the harm that could be reasonably expected to occur from the release of the record in full was an adverse effect on how it “approaches the effective prosecution of fish kills”. It argued that it would impair IFI’s prosecution case if the persons concerned were “to know in advance what could potentially be key evidence in court”. It stated that release of the information at issue under FOI would “alert perpetrators and cause them to take actions which may conceal evidence relied on in relation to the criminal prosecution so to strengthen their case and prejudice the fairness of the trial”. It was also of the view that the release of this information could cause bias during a trial and that it could be harmful to the reputation of any parties who might be identified as potentially being involved in a fish kill, pending a prosecution.
IFI also argued that the release of the information withheld would reveal “what its intentions [might be] in relation to possible criminal prosecutions”, thereby prejudicing any possible criminal proceedings, which it believed could result in “cases being [thrown] out of court”, hindering IFI in performing its statutory functions effectively.
As noted above, in his application for internal review, the applicant stated that while he accepted that some information relating to the standing or current status of a proposed or actual investigation may be exempt, he did not accept that the “mere existence” or location of a fish kill could fall into that category. He argued that the disclosure of a material fact, especially one relating to an environmental accident was “simply the disclosure of a fact”. His position was that this information, in of itself could not compromise any investigation or process that IFI was engaged in.
Analysis
First of all, I accept that IFI has identified a function related to management for the purposes of section 30(1)(b). Broadly speaking, this function might be described as the effective protection, management and conservation of the inland fisheries resources, including the prosecution of persons who cause damage to these resources. I also accept that IFI has identified potential harms that it considers may flow from the release of the information, and that these harms, should they transpire, would be significant. What remains for me to consider is whether release of the particular information at issue could reasonably be expected to result in those harms.
I have had careful regard to the remaining information at issue. In its additional submissions to this Office, IFI stated that while it releases media statements on significant fish kills, at no stage does it comment on the suspected cause until it had been determined “as to do so could impair the outcome of any criminal prosecutions by inadvertently prejudicing” the judge’s or jury’s decision. It also stated that it does not reveal a confirmed source of the fish fill as it could potentially be harmful to “local actors/residents private or commercial” by causing them reputational damage. It also stated that the release of the information sought could notify a potential defendant of the course an investigation may take. IFI said that this could prejudice or impair the outcome of a prosecution by allowing defendants to take actions which may “conceal key evidence relied on in the criminal prosecution and prejudice the fairness of the trial.”
I have also had regard to IFI’s argument that the details of the confirmed cause of each fish kill and the number of mortalities in question comprise the “key findings” of the cases concerned. While this comment was made in relation to section 32 below, I also consider it to be relevant to my consideration of section 30.
However, while IFI has identified certain rows containing information where a prosecution is to be pursued, it appears from its submissions that all of these cases have been heard, part-heard or at least initiated. This Office asked IFI to clarify what material is provided to a defendant where proceedings have been initiated. In response, it stated that after a summons has been issued, the defendant’s solicitor will usually request a discovery file from IFI. It said that depending on the individual fish kill, the file sought by way of discovery “may contain the analysis of any samples taken, statements, …maps, … the suspected cause (which will already been sent in a notification letter to possible defendant when samples taken at the time of the fish kill if applicable), numbers of fish and species affected, photos, chain of custody, interview notes, statements, statement of evidence, invoice for expenses in the case of a guilty plea/verdict and any other relevant material related to the individual fish kill such as reports on events that occurred”.
It seems to me that papers must have already been served on the parties concerned in most cases and that they must be aware of the case against them, at least to some extent. Furthermore, even if these third parties were not aware of the precise details of the case, my understanding is that it is standard practice for such parties to be made aware of the case against them through the discovery process. Furthermore, having regard to the information contained in the record concerned, I am satisfied that it is factual, brief and does not provide the level of detail that IFI would provide as part of the discovery process in an individual case. Additionally, I am satisfied that most if not all of the incidents relating to rows 6, 9, 22, 23, 37, 44 and 45 have already been reported on by the media, or in press releases by IFI itself on its website, at least to some extent.
While release of records under FOI is deemed to be the equivalent of release to the world at large, it seems to me that the third parties in question who are suspected of being or who have been held liable for fish kill incidents relating to the information withheld from release are aware of this already. As noted above, all of the cases relating to the remaining information have been initiated (row 9), part-heard (rows 22 and 37) or heard and concluded (rows 6, 23, 44 and 45).
In the circumstances of this case, I am not satisfied that IFI has demonstrated that the release of the remaining details withheld, relating to cases already before the courts or finalised, could prejudice the same or other court proceedings or that it could prejudice IFI’s functions in respect of the prosecution of persons causing damage to relevant resources. Furthermore, having regard to the limited and factual information contained in the record sought, I am not satisfied that its release would reveal IFI’s intentions in relation to the prosecution of cases which have not been completed. Accordingly, I find that IFI was not justified in refusing access to the remaining information withheld on the basis of section 30(1)(b).
As I have found section 30(1) not to apply, I do not need to consider the public interest balancing test at section 30(2).
Section 32(1)(a)(iv) fairness of court or other proceedings
Section 32(1)(a)(iv) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or civil proceedings in a court or other tribunal. IFI relied on this exemption in relation to the remaining information, which I shall set out again for clarity:
It is well settled that mere assertions by an FOI body as to harms that might result from disclosure of a record are not sufficient for the Commissioner to find that a particular exemption applies. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain why releasing the particular record could reasonably be expected to cause the harm which it has identified. It should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). In interpreting the words “could reasonably be expected to”, the Commissioner’s view is 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.
Where a body wishes to rely on section 32(1)(a)(iv) to refuse access to records, it should be able to refer to proceedings that are either underway or that might reasonably be contemplated. The fact that proceedings are not actually in being does not necessarily mean that the exemption does not apply. If there is a real likelihood, as opposed to a remote possibility, of such proceedings coming into being, this may be sufficient. However, the fact that proceedings may be pending does not, of itself, mean that release of records could reasonably be expected to prejudice the fairness of those proceedings.
IFI’s submissions
In its initial submissions to this Office, IFI stated that the release of specific information concerning the location, species and numbers killed, the confirmed cause of the fish kill and the fact that a report of a fish kill was under consideration for a criminal prosecution would prejudice or impair the fairness of criminal proceedings. IFI stated that criminal proceedings were in the process of being undertaken under sections 171, 172 and 173 of the Fisheries (Consolidation) Act 1959 (relating to penalties for water pollution and the removal of young fish). It also referred to its enforcement function under the Water Pollution Acts 1977 and 1990. Its position was that this particular information would form the basis of any criminal proceedings taken by it against the parties concerned.
IFI stated that the harm that could be reasonably expected to occur is an adverse effect on the effective prosecution of fish kills, in regard to its functions under Section 7(1) of the Inland Fisheries Act 2010. It stated that its prosecution case would be impaired if the parties concerned were to be informed of details of its case against them in advance of a hearing.
IFI also stated that articles or information appearing in the media before a court date would “alert perpetrators” and “cause them to take actions which may conceal evidence relied on in relation to the criminal prosecution so [as] to strengthen their case and prejudice the fairness of the trial”. IFI also contended that the release of the information sought could cause reputational damage to individuals or organisations if their “potential involvement in a fish kill” was put in the public domain. It stated that details of the confirmed cause of death and the number of mortalities were the “key findings” of the cases concerned. IFI argued that their release would be detrimental to its prosecution case and that this would “impair findings” and adversely affect the functions of IFI, “specifically its ability to protect waterways through effective prosecution and thus the overall conservation of Ireland’s Inland Waterways”.
IFI further stated that the harms identified would reasonably be expected to occur as “the majority of fish kills attract media interest and queries both locally and nationally due to the emotive nature” of the issue and “the public’s awareness of our natural habitats”. It was of the view that the release of the information concerned would impair the fairness of the trials at issue “before [they] could be heard” and “potentially [cause] unconscious bias”, both of which it argued would cause “substantial harm to IFI in its ability to perform its functions”. IFI stated that the information concerned was “key to the prosecution case” in “ongoing criminal proceedings” and that its release would “impair the fairness of such [trials] and prejudice the findings of any potential prosecution cases”. It was of the view that the release of such “key information” at this point would undermined the prosecutions involved.
Applicant’s submissions
As noted above, the applicant was of the view that while some information relating to the standing or current status of a proposed or actual investigation by IFI may be exempt, that the “mere existence” or location of a fish kill could not fall into that category. His view was that the release of this information would solely entail the disclosure of a material fact relating to an environmental accident and that the release of such information could not, by itself, compromise an IFI investigation or process.
Analysis
IFI has made similar arguments in support of its reliance on section 32 as it has in relation to section 30 above. Essentially, its position is that the release of the information concerned would reveal details of the case against them to the persons/organisations potentially involved in the various fish kill incidents. It is also of the view that the disclosure of this information at a particular point in time could allow the alleged perpetrators to destroy or conceal evidence of wrongdoing on their behalf.
While I accept that the premature release of details of a prosecution may in some instances prejudice a public body’s case against someone who has allegedly breached the law, it is not clear to me how the release of factual details of cases which have already taken place or which have been initiated could cause the same result. Furthermore, IFI has not explained how this would occur. I also note that IFI has referred to media interest in these incidents and following a brief internet search, I have identified a number of articles which appear to relate to some of the cases which IFI intends to prosecute, including press releases on IFI’s own website. It seems to me that many of the incidents have been identified by the media and are arguably already in the public domain to a certain extent. This appears to me to undermine IFI’s arguments somewhat, insofar as the numbers of fish involved, the fact of a fish kill incident and details of the general location seem to be in the public domain in relation to some, if not all, of the particular cases identified by IFI.
Furthermore, it is not clear to me what parties who had been identified for potential prosecution by IFI could reasonably do to conceal the evidence of a fish kill if they were notified that IFI was aware of an incident and considering prosecution. Additionally, it seems to me that IFI would have already gathered the relevant evidence needed if it had made a decision to prosecute. I note that IFI had not made any further argument in relation to this point in respect to the limited information contained in the records concerned.
I have had close regard to the remaining information at issue. As noted above, the relevant prosecutions have been initiated, heard in part or in full. In such circumstances, it is not clear to me how the release of the limited information contained in the record sought relating to those cases at this point in time could cause any of the harms identified by IFI.
Having regard to the status of the cases concerned and to the information already in the public domain I am not satisfied that the public body has adequately demonstrated that the release of the information concerned could prejudice the fairness of criminal proceedings prosecuted by IFI which have already been initiated or heard. Accordingly, I find that IFI was not justified in refusing access to the remaining information withheld on the basis of section 32 of the FOI Act.
As I have found that IFI was not justified in withholding access to certain information on the basis of sections 30 and 32, I direct the release of the record concerned to the applicant, subject solely to the redaction of the following information:
Having carried out a review under section 22(2) of the FOI Act, I hereby vary IFI’s decision. I affirm its decision to refuse access to certain information contained in the record under section 37 of the FOI Act and find that the public interest does not favour the release of this information. I annul its decision to refuse access to the remaining information withheld on the basis of sections 30 and 32 as it did not satisfy me that these exemptions applied. I direct the release of the remaining information to the applicant.
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.
Sandra Murdiff, Investigator