Decision
Ms X and Veterinary Council of Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-112288-M7W7C3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-112288-M7W7C3
Published on
Whether the VCI was justified in refusing access to records relating to the alleged mistreatment of animals at Dublin Zoo
29 April 2022
In a request dated 29 June 2021, the applicant sought access to records relating to the alleged mistreatment of animals at Dublin Zoo. Specifically, the request sought access to the following:
In a decision dated 27 July 2021, the VCI referred to nine records that it had identified as falling within the scope of the applicant’s request. However, only eight records were included on the schedule provided and it appears that the reference to nine records was simply an error. The VCI refused access to all eight records, citing sections 42(m)(i), 29(1), and 30(1)(a) of the Act. In addition, in respect of parts 3, 6 and 7 of the applicant’s request, the VCI cited section 15(1)(a) of the Act, stating that the records sought did not exist or could not be found.
On 8 August 2021, the applicant sought an Internal Review of the VCI’s decision. The VCI issued its Internal Review decision on 30 August 2021, wherein it affirmed its decision to refuse access to the eight records at issue. In addition to the provisions of the Act cited in its original decision, it also cited section 37(1) of the Act in support of its refusal of the request. On 31 August 2021, the applicant applied to this Office for a review of the VCI’s decision.
During the course of the review, the VCI agreed to release the majority of the records sought, with the redaction of certain information. The only record it continued to withhold in full was Record 1. However, the applicant reverted to indicate that she did not consider the release of the redacted records sufficient to settle the case.
Subsequently, in its submissions to this Office, the VCI cited an additional provision of the Act, namely section 35(1)(a), as a further basis for withholding the records. As the applicant had not had previously had an opportunity to consider the applicability of section 35(1)(a), we wrote to her to put her on notice of the VCI’s reliance on same, and invited her to make any additional submissions that she wished on the matter. No further submissions were received from the applicant.
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 submissions made by the VCI and to the applicant’s comments in her application for review. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the VCI was justified in refusing access to Record 1 in full, and to Records 2-8 in part, under various sections of the FOI Act.
Background Information re the Records
In its internal review decision, the VCI provided the following background information to provide context to the records:
“[A] query was raised with the Veterinary Council in 2020 regarding the alleged practise of veterinary nursing by non registered persons in Dublin Zoo, ie a person other than a qualified veterinary nurse carrying out acts of veterinary nursing … This matter was considered by the Veterinary Council in a meeting in November 2020, directing an authorised officers investigation be carried out … This matter was investigated and ultimately, the allegations were found to be unsubstantiated.
Of particular relevance to the query or concern raised with the Veterinary Council is the practice and procedures relevant to Zoo keeping, including “Irish Standards of Modern Zoo Practice” … Section 3.12 of the “Irish Standards of Modern Zoo Practice” states that “The Veterinary Surgeon should be responsible for or actively involved in the safe and proper collection, preparation and dispatch of diagnostic and other samples. Where these tasks are to be carried out by someone other than the veterinary surgeon, a suitably qualified or appropriately trained member of the Zoo staff should be nominated to carry out the task e.g. a trained senior keeper, a laboratory technician or veterinary nurse. This provision allows for certain procedures to be carried out by persons other than a vet or veterinary nurse, such as a trained senior keeper who is known to the animal.
It is worth observing that the investigation noted that investigators referred to as Authorised Officers were very impressed with the proactive health and welfare focussed approach that is currently being taken by the veterinary and managerial staff at Dublin Zoo. The visit provided reassurance that there are currently high standards of staff training, animal welfare and an open learning environment at Dublin Zoo”.
Section 37(1)
Having regard to the nature of the information redacted form the records, I consider it appropriate to examine the applicability of section 37(1) of the Act in the first instance. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, such as;
(iii) information relating to the employment or employment history of the individual,
(vi) information relating to the 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, and (xiv) the views or opinions of another person about the individual.
In essence, if the information at issue is captured by one or more of the 14 categories, this is sufficient for it to comprise personal information for the purposes of the Act.
Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In its submissions to this Office, the VCI identified a range of material that it regarded as personal information. This included, the names and, in some cases, veterinary practitioner/nursing registration numbers of Dublin Zoo staff; the names of VCI officials; the names and contact details of Authorised Officers engaged by the VCI to conduct an investigation; the name and identifying details of a complainant to the VCI as well as details of correspondence between that complainant and the VCI and references to the complainant’s health; details of interviews held with members of staff (past and present) of Dublin Zoo, as well as references to their positions of employment and past experience and telephone numbers; and the name, address and registration number of the holder of Dublin Zoo’s “Certificate of Suitability”.
Having examined the information at issue, I find that section 37(1) applies to the following records, or parts of records:
Record 1:
Record 1:
Record 2:
Record 4:
Record 5:
Record 6:
Record 8:
I am satisfied that none of the other redacted information comprises personal information and that section 37(1) does not apply. In particular, the names of VCI officials, as well as details of their positions in the VCI, and the names of the individuals who completed the investigation on behalf of the VCI is excluded from the definition of personal information by virtue of Paragraphs (I) and (II) of section 2 of the Act, as outlined above.
Other provisions of section 37
In respect of the information to which I have found section 37(1) to apply, the matter does not end there as section 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.
In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. It found that “… the public interest engaged at this stage of the process must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record …”. 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.
In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
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.
Having regard to the nature of the information at issue and the fact that the release of information under the FOI Act is, in effect, release to the world at large, as the Act places no constraints on the uses to which information released under the FOI Act may be put, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the VCI was justified in refusing access, under section 37(1) of the Act, to the information I have outlined above. In these circumstances, it is not necessary to examine the applicability of the other provisions of the Act that the VCI cited in support of its decision to withhold the records (or portions of the records) in question.
A note on the interplay between data protection legislation and the FOI Act
In its submissions regarding the material in the records that it regarded as personal information, the VCI referenced the definition of personal data that is contained in the Data Protection Act. For the avoidance of doubt, this review is not concerned with the Data Protection Act or the definition of personal data therein, but rather the definition of personal information contained in the FOI Act. In addition, it should be noted that Article 86 of the General Data Protection Regulation (GDPR) provides that personal data in official documents held by a public body may be disclosed by the body in accordance with Union or Member State law to which the body is subject, in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86 of the GDPR, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request. Thus, the GDPR and the Data Protection Act both expressly provide for the disclosure of personal data in official documents.
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. Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue.
Other Exemptions Cited
In light of my findings in respect of section 37 above, I do not need to consider record 1 any further. Moreover, only very minor amounts of redacted information remain to be considered in records 2 to 5, 7, and 8. Given the nature of that information, I am satisfied that none of the other exemptions cited by the VCI apply and I am satisfied that the VCI’s arguments as to why the other exemptions applied did not relate to that information. All that remains, therefore, is for me to consider whether the remaining exemptions cited apply to the remaining parts of Records 6 that have been redacted and to which I have found section 37(1) not to apply. Moreover, many of the redactions remaining to be considered in record 6 comprise minor redactions that are of no relevance to the VCI’s arguments and as with the other records, I am satisfied that none of the other exemptions cited by the VCI apply. The information of substance that remains to be considered, therefore, is that contained in pages 5 and 14 to 17 to which I have not found section 37(1) to apply.
Section 29(1)
Section 29(1) of the Act provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met. It should also be noted that the exemption does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2) of the Act. Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it must also consider whether section 29(2) applies in relation to the record concerned.
The public interest test at section 29(1)(b) is a strong test, and any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. This Office has previously held that the FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of this Office how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
A ‘deliberative process’ as envisaged by section 29(1)(a) may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter.
In its submissions to this Office, the VCI said that information at issue relates to matters which were the subject of an investigation pursuant to section 125(a)(i) of the Veterinary Practice Act 2005 (as amended). It said the Report (record 6) clearly constitutes the deliberative process of an FOI body. It said the report is in narrative form and constitutes in written form the deliberative process of the Council in respect of evidence received from the complainant, interviews of the individuals complained of, and other matters directly related to the investigation. It said the Report includes discussion of the cogency (or otherwise) of the evidence considered and that it is a report of iterative proceedings and deliberations.
I accept that the report contains matter relating to the deliberative processes of the VCI and as such, that the relevant parts of the report as outlined above relate to those deliberative processes. In relation to the public interest test as it applies to those parts, the VCI argued that releasing the record would be contrary to the public interest. It argued that it is in the public interest that the VCI, which relies in large part on voluntary participation by registrants and members of the public to quickly, fairly and cost-effectively reach conclusions, has its procedural autonomy preserved. It said that in this case, the complaint was investigated with the Council deciding on consideration of the Report to take no further action.
The relevant parts of the record at issue are concerned essentially with the investigative procedures adopted and the related findings. In my view, the release of those parts would not adversely affect voluntary participation in similar such investigations. As such, I fail to see how the release of the relevant parts of the record at issue might impinge on the VCI’s procedural autonomy. Accordingly, I am not satisfied that the release of the relevant parts of record 6 would be contrary to the public interest. I find, therefore, that section 19(1) does not apply.
Section 30(1)(a)
The VCI also cited section 30(1)(a) of the Act as a basis for partly withholding access to Record 6. Section 30(1)(a) provides for the refusal of access to a record where its release could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.
In its submission, the VCI argued that if the records in relation to the investigation which was conducted in private (including interviews with witnesses and correspondence with the complainant) were released on foot of a Freedom of Information request, the procedure/method used by the VCI would be prejudiced in that the private nature of the investigations would be wholly undermined. It said it cannot compel members of the public to make a complaint. And while the VCI does have the ability to conduct its own investigations as in this case, it relies significantly on members of the public coming forward with information and complaints. It said there is a direct correlation between the level of confidentiality provided to Complainants and their willingness to come forward. It argued that if a member of the public knew that information provided to the Council in confidence could be released, they would be less likely to make a complaint. It argued, therefore, that the release of the records without redaction may therefore undermine the Council’s investigative function by acting as a disincentive to persons coming forward with a complaint.
It seems to me that the VCI’s arguments are based entirely on the premise that the release of the records at issue would involve the disclosure of the identity of the complainant and related witnesses. I am satisfied that the disclosure of the relevant parts of record 6 would not disclose such information. In the circumstances, I find that section 30(1)(a) does not apply.
Section 35(1)(a)
Section 35(1)(a) provides that the Act applies to a record containing information given to an FOI body in confidence. In order for section 35(1)(a) to apply, it is necessary to show the following :
(i) that the information was given to an FOI body in confidence and,
(ii) that the information was given on the understanding that it would be treated by the FOI body as confidential and,
(iii) that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
(iv) that it is of importance to the body that such further similar information should continue to be given to the body.
All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a).
I am satisfied that none of the remaining relevant information at issue in record 6 can be said to satisfy the four requirements in section 35(1)(a). Accordingly, I find that the information is not exempt from release under that provision of the Act.
Section 42(m)
Section 42(1) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of –
(i) the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession, or
(ii) any other source of such information provided in confidence to an FOI body, or where such information is otherwise in its possession.
I am satisfied that the disclosure of the remaining relevant information at issue in record 6 could not reasonably be expected to reveal, or lead to the revelation of any such person or source. I find, therefore, that section 42(m) does not apply.
In conclusion, I find that the VCI was justified in redacting the information to which I have found section 37(1) to apply as described above and to no other information in the records at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the VCI. I find that VCI was justified in redacting certain information from the records at issue under section 37(1) of the Act as described in the decision itself. I find that it was not justified in redacting any other information from the records and I direct the release of those parts of the records.
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 requester 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