Request for names of owners of cattle bearing particular tag numbers - whether names of owners of animals held by public body is personal information - sections 2 and 28 - whether public interest in release where wrongdoing is alleged to have occurred

Case Summary

Facts

Mr X had noted the tag numbers from certain animals he alleged had trespassed on his land. He sought the names of the owners of the animals from the Department which held this information.

Decision

The Commissioner accepted that the information sought was held by the Department on the understanding that it would be treated by it as confidential and therefore met the definition of personal information. He came to this finding even though the Department had not given any explicit assurance of confidentiality. He was satisfied that the Department held the information for a limited purpose, i.e. for use in connection with the schemes administered by the Department.

The Commissioner found that the public interest in the right to privacy of the individuals concerned was not outweighed by a number of public interest arguments put forward by Mr X.

Date of Decision: 04.12.2000

Our Reference: 99331

04.12.2000

Mr X

Dear Mr X

I refer to your application for a review of the decision of the Department of Agriculture, Food & Rural Development ("the Department") to refuse you access to a record detailing the owner of animals which you allege were found trespassing on your lands.

Background

I have now completed my review of the Department's decision. In carrying out that review I have had regard to your correspondence with this Office and the Department, and the submission which I received from the Department.

I note that on the 21 September 1999 Mr Fee of this Office wrote to you offering his preliminary view on this matter and offering you an opportunity to make a submission. Having received your reply and examined the issues involved I have decided to conclude my review by way of binding decision.

In summary my decision is to affirm the decision of the Department to refuse you access to the information concerned.

Scope of Review

My review is concerned solely with the question of whether the decision of the Department to refuse you access to the name and address of the herd owner is correct.

For the avoidance of doubt, I wish to make it clear that my decision is concerned only with the question of release of information to you under the Freedom of Information Act. Whether, and in what circumstances, the Department may release this information to the Garda Síochána or any other proper authority is not a matter for me as Information Commissioner.

Findings

The Department has refused you access to a record listing the name and address of the herd owner concerned under section 28(1) of the Freedom of Information Act. Section 28(1) states that:

"...a head shall refuse to grant a request under section 7, if in the opinion of the head, access to the record concerned would involve the disclosure of personal information...".

Whether the information sought is Personal Information

Personal information is defined in section 2 of the FOI Act as:

"information about an identifiable individual that -

(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 a public body on the understanding that it would be treated by it as confidential,

and, without prejudice to the generality of the foregoing, includes..."

"...(xi) information relating to the property of the individual (including the nature of the individual's title to any property),..."

It seems to me that in this case, the information you are seeking is information relating to the property of an individual. The question then arises as to whether the information meets the requirements of (a) or (b) above. I note that the Department has stated that it holds such information on the understanding that it will be treated by it as confidential.

In your correspondence to my Office you have suggested that the information you are seeking is contained in cattle identity cards and cattle movement notifications which are passed from seller to buyer when a particular animal is sold. You have argued that this process brings the information into the public domain and, therefore, it is not confidential. However the only persons who have access to such cards are the current and previous owners, Department of Agriculture officials, a veterinary surgeon employed by the owner and the cattle mart if the animal is being sold. The cards therefore are not made available to the public in general and I do not accept that the information on them is in the public domain.

You have also stated that the name and address of the owner of a restricted holding and the location of the holding is included in a public notice. I accept that such information is made public in the general area of the holding. However, such notices are only issued if there is an outbreak of disease and this is done under the Disease of Animals Act 1966. These notices do not include detailed information about the animals involved such as tag numbers. In this instance, there is no evidence of such a notice being made.

You have pointed out in relation to a number of documents that list the owner or keeper of the herd, i.e., the application for birth registration and administrative document, the cattle identity card/passport and the cattle movement notification, that such documents do not claim that the information concerned is provided in confidence or is confidential. I accept that this is the case and that the Department has not given explicit assurances of confidentiality in relation to the information sought. However, I am satisfied that herd owners understand that the information is given to the Department for a limited purpose, viz. for use in connection with the various schemes administered by the Department and not for the purpose of disclosure to third parties. In the circumstances, I am satisfied that such information is held by the Department on the understanding that it will be treated as confidential. Therefore, I find that the information concerned is personal information as defined in section 2 of the FOI Act.

Whether release is in the public interest

Section 28(5)(a) of the Act provides that personal information may be released where:

"the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld...".

In deciding whether disclosure of personal information would be justified in the public interest, a positive public interest which can outweigh the right to privacy must be identified.

I should point out that the Freedom of Information Act provides that in deciding whether to grant or refuse a request any reason that the requester gives for the request has to be disregarded. Because of this I cannot concern myself with questions of whether the alleged trespass took place and, if so, to what degree, if any, the owner of the trespassing animals was at fault. In other words, if I were to find that the records you request should be released to you, they would become accessible to requesters generally.

In your correspondence with my Office you have put forward a number of arguments which I take to be related to the public interest. Essentially, your arguments appear to come down to two points. The first is that there is a public interest in ensuring that all herd owners confine their animals to their lands to prevent the spread of disease. I accept that there is a public interest in measures being implemented to reduce the risk of the spread of disease. However in this case the trespass has already occurred and I fail to see how disclosing the identity of the herd owner at this stage would further this aspect of the public interest. I am also not convinced that release of this information, either in this or in other cases, would have any great effect on the behaviour of herd owners in persuading them to properly confine their animals. Even if it did, I am not convinced that the public interest in securing such a result outweighs the right to privacy of herd owners generally.

Your second point appears to be that there is a public interest in protecting the interests of an owner whose herd has been in contact with trespassing animals. Once again I accept that such a public interest exists. However, I do not accept that, in order for a herd owner's concerns about the welfare of the herd to be met, it is necessary to know the identity of the owner of the trespassing animals.

I should also note that an affected herd owner may also wish to pursue a claim for damages or other remedy against the owner of trespassing animals and to do this the latter's identity must be established. However, as your submission makes clear, there may be an onus on landowners who discover trespassing animals to ensure that such animals are only released to their proper owners. It seems to me that in discharging this responsibility a landowner is in a position to discover ownership by putting the onus of proving ownership on any person seeking to remove those animals.

Having weighed up the public interest factors involved and having regard to the provisions of section 28(5) I find that the public interest that the request should be granted does not outweigh the public interest in the right to privacy of the individual to whom the information relates.

You have also put forward a number of other points in relation to an apparent conflict between the legislation herd owners must comply with and the provisions of the FOI Act. I see no conflict between the protection of personal information and the limited use of that information by the Department of Agriculture, Food & Rural Development. The Department does not release such information into the public domain except where the public interest requires it. Likewise the FOI Act protects personal information except where the public interest outweighs the right to privacy of the individual.

Finally, I should make it clear once again that my decision relates only to your request under the Freedom of Information Act. Nothing in that Act (including the provisions of section 28(1)) prohibits or restricts the Department from giving access to this information (e.g. to the Garda Síochána) where the giving of access is not prohibited by law.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby affirm the decision of the Department to refuse access to the information concerned.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner