Request for report prepared before the commencement of the FOI Act - whether access is necessary or expedient in order to understand records created after the commencement of the FOI Act - section 6(5)(a)

Case Summary

Facts

The requester applied to the Department of Agriculture, Food & Rural Development for a copy of a report entitled "Report on Monitoring of the Ward Union Hunt Club Stag Hunts" prepared in 1997. The Department refused access to the report on the ground that it was created before the commencement of the FOI Act and that access was neither necessary or expedient in order to understand a record created after the commencement of the Act. The requester argued that access to the report was necessary /expedient in order to understand a later report which was created after 21 April, 1998.

Decision

The Commissioner examined the later report in the light of his interpretation of section 6(5)(a) as set out in Case No. 98117 - Mr ABE and the Department of the Marine and Natural Resources. He found that it contained two references to the earlier report. He found that the opening paragraph of the introduction in the later report gave a brief description of the earlier report. He found that while the opening paragraph could be severed from the rest of the report without affecting the ability of the reader to understand what remains, the correct test to be applied is whether the substance of the whole record can be understood.

The Commissioner considered whether access to the earlier report would simply enhance the information contained in the opening paragraph of the later report or whether it would enable the requester to understand its substance. He examined the information contained in the opening paragraph of the later report and was unable to identify any item of information that was not comprehensible either in meaning or significance without access to the earlier report. The Commissioner found that access to the earlier report was not necessary or expedient in order to understand the later report.

Date of Decision: 12.12.2000

Our Reference: 99570

12.12.2000

Dear Ms X

Dear Ms X

I refer to your application under the Freedom of Information Act for a review of the decision of the Department of Agriculture, Food & Rural Development (the Department) to refuse your request for a copy of "the report by K.W.S. Kane, 1997, entitled Report on Monitoring of the Ward Union Hunt Club Stag Hunts".

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 the Department and to its submission to my Office. I have also examined the relevant records.

Scope of Review

The Department refused access to the record sought on the basis that it was created before the commencement of the FOI Act and that access is neither necessary or expedient in order to understand a record created after the commencement of the Act. Accordingly, my review is concerned solely with the question of whether the decision of the Department to refuse access to the record sought is correct.

Department's Submission

The Department, in its submission to my Office, indicates that the report to which you were granted access is a full scientific evaluation of the activities of the Ward Union Hunt and it considers that it is a comprehensive document which is understandable without reference to the previous report referenced. It considers that the reference to a previous report in the introduction is a statement which does not detract in any way from the overall content of the 1997/1998 report and that the inclusion of the statement in the introduction does not alter the reader's ability to understand the nature and extent of the information in the overall report either literally or in terms of the essential core of the subject under discussion. The Department says that while the opening sentence in the introduction may very well lead a reader to raise queries or questions, the fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable the requester to extend or analyse information contained in a later record does not mean that access to the earlier record is necessary or expedient in order to understand the later record. It also argues that, as the introduction clarifies that the further study commissioned was to provide "in particular an assessment of the reaction of the deer (i) during the hunt, (ii) immediately afterwards and (iii) subsequently", the core focus of the report is very clearly understandable without reference to the earlier report. Both reports were prepared as an aid to the Minister for Arts, Culture and the Gaeltacht in his/her deliberations on the future licensing of the Ward Union Hunt. Both reports were primarily concerned with the effects on deer of their being hunted.

The Department goes on to set out the background to the creation of both reports. The Department also provides details of other grounds on which it considers that the report sought should not be released, including its view that a direct comparison of both reports may lead to a misunderstanding by a third party given the circumstances surrounding the creation of both reports. I do not propose to set out in detail these further arguments in this letter as I do not consider them to be relevant to the question of whether access to the earlier report is necessary or expedient in order to understand the later report.

Findings

The FOI Act confers a right of access to records created after its commencement, i.e. 21 April 1998. Furthermore, section 6(5) confers a right of access to records created before 21 April 1998 where such access is necessary or expedient to understand records created after that date, or where the records relate to personal information about the requester. I note that the report to which have already been granted access, entitled "Report on the Welfare of Deer hunted by the Ward Union Hunt Club, 1997-1998 Season", was created after 21 April, 1998. As it is clear that the record sought does not relate to personal information about you, it follows, therefore, that the only issue I must consider is whether access to the record is necessary or expedient in order to understand a record created after that date in accordance with the provisions of section 6(5)(a) of the Act.

I have previously considered the application of section 6(5)(a) in case no. 98117 - Mr. ABE and the Department of the Marine and Natural Resources as follows:

"In my view, the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether itssubstance(or gist or subject matter) can be understood. Having said that I must make it clear that, in my view, the fact that a document does not contain all the information which a reader might wish to have does not mean that the substance of a document cannot be understood. The fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable a requester to extend or analyse information contained in a later record, does not of itself mean that access to the earlier records is necessary or expedient in order to understand the later record.

I have also considered the significance of the use of the word "expedient" in section 6(5)(a). "Expedient" I take to mean "fit, proper or suitable to the circumstances of the case". [OED]. It is clear that the word "expedient" is less restrictive than the word "necessary". It might be argued that the use of the word "expedient" is designed to enable a requester to gain access to pre-commencement records where that access enhances his/her understanding of a post-commencement record.I do not accept that argument.It seems to me that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record. I consider that I would not be justified in holding that any pre-commencement record which deals with the subject matter of a post-commencement record or which might shed new light on that subject matter, is per se within the ambit of section 6(5)(a). "

In the light of my interpretation of section 6(5)(a) as outlined above, I have examined the report to which you have been granted access. There are two references to the earlier report in the report released to you. One is simply a reference to the title of the earlier report in a list at the back of the later report of various references (16 in all) mainly of published books or journals of a scientific or technical nature. The application of section 6(5)(a) does not, in my view, arise in the context of this reference. The second reference is at the beginning of the released report under the heading "Introduction" and reads as follows:

"In a report to the Minister for Arts, Culture and the Gaeltacht (Kane, 1997) the hunting of red deer (Cervus elaphus) by the Ward Union Hunt Club was described, observations on the welfare of the deer were made, the conduct of the Hunt and its followers and their impact on public roads, lands and agriculture were described and some conclusions were drawn with a caveat that insufficient time had been allowed to conduct a fuller investigation".

I accept that the literal meaning of the later report, including the opening paragraph of the introduction, can be understood without reference to the earlier report. However, as I indicated in case number 98117, section 6(5)(a) is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. The Department argues that the inclusion of the reference to the earlier report in the introduction does not alter the reader's ability to understand the nature and extent of the information in the overall report in terms of the essential core of the subject under discussion. It also argues that, as the introduction clarifies the matters which the further study was to deal with, the core focus of the report is very clearly understandable without reference to the earlier report.

I accept that the opening paragraph of the introduction to the later report could be severed from the rest of the report without affecting the ability of a reader to understand what remains. It may be that this is what the Department has in mind when it refers to understanding "the nature and extent of the information in the overall report either literally or in terms of the essential core of the subject under discussion". If this is the Department's argument then, in my view, it is incorrect. In my view, the correct test to apply is whether the substance (or gist or subject matter) of the whole record can be understood. In the present case, this comes down to the question of whether access is necessary or expedient in order to understand the opening paragraph of the introduction to the report.

When considering the paragraph quoted above, I started by asking myself the question "what information is contained in this paragraph?" In other words, what does the paragraph tell us? It tells us that:

(a) there was a report prepared for the Minister for Arts, Culture and the Gaeltacht in 1997, (b) the report described the hunting of red deer by the Ward Union Hunt Club, (c) the report contained observations on the welfare of the deer, (d) the report described the conduct of the Hunt and its followers and their impact on public roads, lands and agriculture, (e) the report drew some conclusions with a caveat that insufficient time had been allowed to conduct a fuller investigation.

It is clear that the Department of Arts, Culture and the Gaeltacht decided that a further study was required of the issues contained in the earlier report and that, in that sense, there is a direct link between the two reports. While it is clear from the later report that a further study was commissioned, there is no indication as to why this was done. The opening paragraph indicates that the earlier report contains conclusions which were drawn but it does not provide details of the conclusions drawn and no indication is given as to the findings in the earlier report on matters which are also addressed in the later report. In the circumstances, the opening paragraph may very well raise questions in a reader's mind.

However, the Department argues that while the opening paragraph may very well do this, the fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable the requester to extend or analyse information contained in a later record does not mean that access to the earlier record is necessary in order to understand the later record. As I also explained in case number 98117, I do not accept that that the use of the word "expedient" in section 6(5)(a) is designed to enable a requester to gain access to pre-commencement records where that access enhances his/her understanding of a post-commencement record as opposed to permitting the substance of the later record to be understood. It is against that background that I must consider whether or not it is necessary or expedient that you as the requester be given access to the earlier report in order to understand the substance of the later one and, in particular, the substance of the opening paragraph.

It is clear that the release of the later report without the release of the earlier report has given you, as the requester, information about the effects on deer of their being hunted which is partial and not complete. All the information which was available to the Minister in making his/her decision on licensing has not been given to you. The release of the earlier report would clearly give you access to information which would be relevant to your organisation's concerns. But would access to the earlier report simply enhance or amplify the information contained in the opening paragraph rather than enable you to understand the substance of that paragraph? I have examined the five items of information contained in that paragraph. Clearly access to the earlier report would give you further information about the effects of their being hunted on the welfare of the deer and the effects on the local infrastructure of the hunt itself, as well as the conclusions of the author based on that information. But I have not been able to identify any item of information which is not comprehensible either in meaning or significance without access to the earlier report. I find that access to the pre-commencement record is not necessary or expedient to understand the record already released to you.

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 of Agriculture, Food & Rural Development.

A party to a review, or any other person affected by a decision of the 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 4 weeks from the date of this letter.

Yours sincerely

Information Commissioner