Whether the Council was justified in refusing access to the inspection records of a particular dog breeding establishment on the basis of section 32(1)(b) of the FOI Act
19 November 2021
This request concerns inspection reports relating to a particular dog breeding establishment (DBE). This establishment had been subject to four inspections by the Council. Ultimately, the DBE was closed and the owner was prosecuted by the Director of Public Prosecutions for animal cruelty. This resulted in a custodial sentence being handed down for the owner. There was significant media coverage at the time of these proceedings.
On 4 March 2019, the applicant submitted an FOI request to the Council for access to details of all inspections carried out at this particular DBE. On 26 April 2019, the Council refused access to the inspection records on the basis of section 32(1)(b) of the FOI Act. This section states that a request may be refused if access to the record could reasonably be expected to endanger the life or safety of any person. The applicant applied for an internal review of the Council’s decision. On 17 May 2019, the Council affirmed its original decision to refuse access to the records on the basis of section 32(1)(b) of the FOI Act. On 15 November 2019, the applicant applied to this Office for a review of the Council’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. I sincerely apologise for the length of time it has taken to complete this review. In carrying out my review, I have had regard to the submissions made by the applicant, to submissions made by the Council and to submissions made by a third party who may be affected by the decision in this case. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
There are a number of preliminary points that I wish to make in relation to procedural matters raised by the applicant and in relation to the Council’s treatment of the applicant’s FOI request.
In his submissions to this Office, the applicant states that he is at a loss to understand the basis on which this Office decided to consult with a third party during the review. He states that this amounts to admitting new evidence during the review and that he understands the remit of this Office is to examine the basis on which the Council refused the original request.
A review by the Commissioner under section 22 of the FOI Act is considered to be de novo as it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr. Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner  IEHC 116
. Similarly, In The National Maternity Hospital and The Information Commissioner  3 IR 643
,  IEHC 113
, the High Court (Quirke J) stated as follows: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".
The basis for the decision to consult with the third party is section 22(6) of the FOI Act, which requires the Commissioner to notify inter alia
any person who, in his opinion, should be notified of his proposal to review a decision of a public body. Having regard to the content of the records, I am satisfied that it was appropriate to notify the third party as that party may be affected by the decision in this case. The applicant was provided with a summary of new material issues contained in the third party’s submission and he made comments and observations in relation to these new material issues.
Finally, I would also note that the Council's treatment of this request was not satisfactory. The original decision did not comply with best practice as it failed to provide the applicant with a schedule of identified records. The records described under the "scope" section of this decision were identified to this Office, but do not appear to have been detailed to the applicant. The CPU Code of Practice states that a schedule of records should be furnished to requesters and Section 48 of the FOI Act obliges FOI bodies to have regard to the Code in the performance of functions under the Act. Further, the Council failed to abide by the statutory timeframes set out in sections 13 and 21 of the FOI Act when makings its decisions. I would remind the Council of its obligations on these points.
Scope of the Review
This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to four records relating to a particular dog breeding establishment on the basis of section 32(1)(b) of the FOI Act. The records comprise four inspection reports of the named establishment.
Analysis and Findings
Section 32(1)(b) – Endanger Life or Safety
Section 32(1)(b) is a discretionary exemption that allows a public body to refuse 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.
The exemption 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.
The Council’s Submissions
The Council states that there was an atmosphere of mob mentality during the trial of the DBE owner and the DBE inspectors have a very real fear that if they are publically named then they, and their families, may be considered targets. It said that the inspectors had been subject to a barrage of hate comment on social media. The Council stated that details of the inspectors had been available on the Council website, but that they had been taken down as a result of the attention surrounding the trial. The Council’s view is that releasing the reports, as there is only a small number of inspectors, would be similar to publically naming them and there is therefore a real possibility that their positions would become untenable.
The Council also pointed to online abuse directed at the DBE owner and his family. Among the Council submissions were comments in the media attributed to the judge in the case where he stated “…the shocking, indeed one can say, disgusting, response there has been on social media to the tragedy that has befallen the [ ] family”. The Council also included media coverage of comments attributed to a defence barrister where she is purported to have stated that the [family] have been subjected to abuse and threats on social media, which included giving details of their address and “talk about burning them out”. The Council contends therefore that the release of the records could reasonably be expected to endanger the life or safety of the inspectors and the DBE owner and his family.
The Third Party’s Submissions
The third party says his family endured horrendous abuse on social media in connection with the reports. He says this abuse resulted in one family member being hospitalised due to stress and other family members requiring counselling to help cope with the abuse and death threats received on social media. The third party states that someone set fire to the entrance to his home. and his family required Garda protection for the home due to death threat letters. He says he would fear for himself and his family if the inspection reports were to be released into the public domain.
The Applicant’s Submissions
The applicant says that the names of the inspectors are already in the public domain and there is therefore no point in protecting them. A screenshot was provided by the applicant to this Office of the names of the inspectors from a time when it was publically available on the Council’s website and he noted that the “document was widely shared on social media”. The applicant noted that there was widespread revulsion about this case and that it naturally brought public outrage, but that there is no evidence that inspectors were at risk. The applicant asserted that the Council does not want to release the records because it wants to prevent examination and scrutiny of its role in awarding a licence to this DBE and its failure to protect animals in this case.
The applicant states that the third party has made allegations but he questions whether these allegations have been substantiated. The applicant states that having a knowledge of this case, he would question the veracity of the third party’s statements. He states that negative comment, however vile, on social media cannot justify a failure to disclose. He states that the presumption must always be in favour of disclosure. The applicant contends that neither the Council nor the third party have demonstrated that harm will befall them as a result of the disclosure of the inspection reports and he contends that spurious speculation is not a rational reason to refuse disclosure.
Analysis and Findings
This Office has decided on a number of cases in the past where applicants have requested records of all inspections carried out at DBEs over a certain period of time. In many of those cases, the relevant public body redacted information which would identify individuals and released the remainder of the records. This case is different in that the applicant has requested records in relation to a particular DBE and he has included the name and address of the DBE owner in his FOI request. The Council has refused access to the records in their entirety. However, even if the Council were to redact the name of the DBE owner, the owner would still be identifiable as a consequence of the wording of his FOI request.
I can fully appreciate the applicant’s desire for transparency around the Council’s performance of its inspection functions. However, the question for me here is whether or not it is reasonable that release of these inspection records could endanger the life or safety of any person. While I accept that some of the information outlined is, or was, publicly available, the release of the records in this case would disclose more than that already available. The issue is not that the release of the identities of the Inspectors and the DBE owner could give rise to the harms identified, rather it is whether or not the release of the information contained in the various reports could do so, where the identities of individuals are known.
In my view, given the submissions outlined above by the Council and the third party, this is a case that has already resulted in more than simply “negative comment”. I accept that the Council did not adequately provide the applicant with sufficient reasons at original decision or internal review stage, but I am satisfied based on the information outlined above that there has been considerable social media backlash against both the inspectors and the family involved in this case. The submissions outlined above from the Council and third party, of which the applicant was made aware, set out significant threats, as well as damage to property. Having reviewed the content of the records at issue, in my view, this demonstrates that an expectation of harm occurring from the release of the records in this case is reasonable. I find therefore that section 32(1)(b) applies.
Section 32(3) contains a limited public interest test. It provides that in certain circumstances, section 32(1) does not apply where the body considers that the public interest would, on balance, be better served by granting the request. The circumstances are as follows:
if the record discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law, or
if the record contains information concerning the performance of the functions of an FOI body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or
if the record contains information concerning the merits or otherwise or the success or otherwise of any programme, scheme or policy of an FOI body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by an FOI body.
Among other things, the applicant argued that the reports contain information concerning the performance of the functions of the Council relating to the enforcement of law. The applicant argued that the records evidence how the Council interpret and apply the Dog Breeding Establishment Act as they should contain certain information, and where they do not contain that information then this would evidence the effectiveness of the Council’s performance in administering and enforcing the legislation.
This Office has previously considered this issue in Case Number 170043, which also related to the inspection records of dog breeding establishments. It was noted in that case that:
“While a reader of the reports may well form a view as to the performance of the bodies concerned in relation to how they have carried out their inspection functions, the reports are not concerned with the performance of the bodies of their functions. Rather, they are concerned with the performance of the DBEs of their functions and activities. In my view, the provision is aimed at ensuring public bodies cannot rely on section 32(1) to refuse access to records that are concerned with how those bodies are carrying out their functions. I find that section 32(3) does not apply in this case.”
The applicant submitted that this approach is incorrect. He offered an example of an inspection record showing how a veterinary officer allowed the use of particular crates, the use of which were forbidden, under Dog Breeding Establishment Guidelines. He stated that the records therefore contained information about the performance of the vet when enforcing the DBE Act. Consequently, the inspection record contained information about the local authority vet’s enforcement of the legislation.
As noted above, a reader may well form a view as to the performance of the bodies concerned in relation to how they carry out inspection functions. However, I am not persuaded from the view that these records are concerned with the performance of the DBE in question, rather than the Council. I agree that this section is intended to ensure that public bodies cannot rely on section 32(1) to refuse access to records concerned with how they carry out their functions. I find therefore that section 32(3) does not apply in this case.
Article 10 ECHR
The applicant also submitted that the Commissioner must carry out a public interest test regardless of the wording of section 32(3) on the basis that the European Convention on Human Rights Act 2003 (ECHRA) necessitates a public interest test in any circumstances where information is refused. The applicant says that Article 10 details the right to demand information from the state if three criteria are met:
1) The purpose of the request is to impart information by a person or body in a position to do so;
2) The information is in the public interest; and
3) The information is ready and available.
The applicant argues that the OIC is an organ of the State as a body established by law and therefore subject to the ECHRA.
Article 10 states:
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The applicant relied on the case of Magyar Bisottsag v Hungary ECR (2016) in support of the assertion that a public interest test must be carried out in all instances where information is refused. That case found that Article 10 can potentially give rise to a right to access information. It sets out four criteria for engaging such a right of access under Article 10, namely:
a. Purpose of request. As a prerequisite, the purpose of the request must be to enable [the requester’s] exercise of the freedom to receive and impart information and ideas to others. The information must be “necessary” for the exercise of freedom of expression.
b. Nature of information sought. The information must meet a legitimate public interest test to prompt a need for disclosure under the Convention.
c. Role of requester. The applicant must be in a privileged position, seeking the information with a view to informing the public in the capacity of a public watchdog. Such a privileged position should not be considered to constitute exclusive access.
d. Information ready and available. Weight should be given to the fact that the information requested is ready and available.
The applicant stated that the ECHRA requires a public interest test to be carried out irrespective of the provisions of section 32(3) of the FOI Act. He is of the view that the Council therefore should have interpreted this section to apply to the circumstances in question here and the Council should have undertaken a public interest test.
It was also argued that in considering this appeal, this Office should do the same and if this Office is of the view that it cannot interpret the legislation to give effect to the ECHRA, then it should refer the matter to the High Court and seek a declaration of incompatibility. I have considered each of the applicant’s arguments very carefully.
The jurisdiction of this Office is derived from the FOI Act and the Commissioner’s remit, in this instance, is to carry out a review in accordance with section 22 of the FOI Act. It appears to me that Article 10.2 ECHRA envisages any potential right being subject to domestic law. It notes that the “exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”. In my view, the FOI Act falls squarely within this definition. In any case, even if it were to be successfully argued that it does not, I do not believe that the Commissioner has jurisdiction to make a determination on the applicant’s Article rights, or any potential breach thereof. I am obliged to carry out a review on a decision made under FOI legislation. To do that, I am bound to interpret and apply the provisions of the FOI Act. If the applicant is of the view that the Council has breached a right under Article 10 then I believe that the appropriate remedy for that is the courts, rather than through this Office. I do not consider that processes undertaken pursuant to the FOI Act are incompatible with such rights as they may arise; rather, it is simply not a matter on which this Office has jurisdiction to adjudicate.
As regards the argument that the OIC is “an organ of the State”, I accept that this Office is established by statute. However, in giving effect to any potential Article 10 rights that arise by virtue of the Magyar case, I believe that this applies to any requests for information that are made directly to this Office for records of this Office. On this basis it would apply, for example, to general administration records, rather than to the records that are considered for the purposes of carrying out the functions of this Office, namely the review process. To imply otherwise would make a nonsense of the FOI Act in this jurisdiction, as it would mean that any record being considered for the purposes of a review would also be subject to a separate public interest test to be carried out by this Office after a decision had been reached on whether or not it was exempt under FOI. I cannot accept that the decision in Magyar was intended to, effectively, invalidate the FOI Act in this jurisdiction.
Finally, I have found above that the information contained in the records is exempt information. Section 25(3) of the FOI Act prevents me from disclosing information contained in an exempt record. As noted above, I am obliged to give effect to the provisions of the FOI Act. If I proceeded to carry out a public interest test, on the basis of Magyar, and if I found that the records should be released on foot of such a test, I would be unable to order the release of any such records under the FOI Act, which would render the exercise meaningless.
I find therefore that I do not have the jurisdiction to adjudicate on the applicant’s assertion that there has been an infringement of Article 10 ECHRA. I find that, as this Office holds these records for review purposes only, it is not this Office’s function to carry out any potential Article 10 assessment on the records in questions. My function is to apply the FOI Act to the Records, which I have set out above.
Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Council to refuse access to the records on the basis of section 32(1)(b) of the FOI Act.
Right of Appeal
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.