Dear Mr X

I refer to your application under the Freedom of Information Act, 1997 ("the FOI Act") for a review of the decision of the Department of Agriculture, Food & Rural Development ("the Department") in connection with your request for access to all files relating to Herd Number XXX. I apologise for the delay which has arisen in dealing with your application. Unfortunately due to staff shortages and pressure of work, it has not been possible to finalise your case until now.

Background

I have now completed my review of the Department's decision. In carrying out that review I have had regard to your original correspondence with the Department, your correspondence with my Office and correspondence between the Department and my Office. I have also examined the relevant records held by the Department.

Scope of the Review

When processing this request, the Department numbered 457 pages held on the file relating to you with the exception of eight pages which were treated as parts of other records and which did not receive a number. For ease of reference, I have adopted the numbering system used by the Department in referring to the records at issue. Following discussions with the Department, it was also agreed that the eight pages which did not originally receive a number should be numbered 454A, 454B, 454C, 454D, 454E, 454F, 456A and 457A.

The Department originally decided to refuse access to 51 pages, including the eight newly numbered pages listed above and to grant only partial access to eight others (pages 99, 125, 126, 127, 128, 129, 164 and 247). During the course of the review, the Department decided to release page numbers 433, 448, 449, 450 and 455. You also confirmed that you no longer require access to pages 99, 125, 164 or 247. I further note that following the written consent of Y and Z to the release of all personal information relating to them, the Department subsequently decided to release records 126, 127, 128 and 129.

Accordingly my review is concerned solely with the question of whether the Department is justified in refusing access to pages numbered 233, 390, 417 to 432, 434 to 447, 451 to 454, 454A to 454F, 456, 456A, 457 and 457A (46 pages).

Findings

While the Department initially cited the exemptions contained in sections 21(1)(a) and 23(1)(a)(i) & (iv) of the FOI Act in deciding to refuse access to the records at issue, it is clear from the Department's recent submission dated 15 October, 2001 that it now wishes to rely on the exemptions contained in sections 23(1)(a)(i) & (iv) only as a basis for withholding the records. I have set out below my findings in respect of the applicability of these exemptions and in respect of a number of other sections which I consider to be relevant to this review. I should explain at the outset that I have had regard to the provisions of section 34(12)(b) of the FOI Act which places the onus on the Department of satisfying me that the decision to refuse access to the records at issue in this case is justified.

The Department advises that there are two sets of pending court proceedings which impinge on this case. One is in relation to 47 summonses issued by the Director of Public Prosecutions against yourself and your father, Y, in respect of alleged breaches of the Animal Health Regulations while the other relates to a high Court action initiated by you against the Department relating to the amalgamation of Y's herd with your own. The Department indicates that records 233, 419, 420, 422(part), 424(part), 438(part) and 444 relate to the amalgamation of the herds while the remaining records, or parts thereof, relate to the alleged breaches of the Animal Health Regulations.

Section 23(1)(a)
Section 23(1)(a) of the FOI Act provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters...

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal...

In the case of The Sunday Times Newspaper & Others and the Department of Education and Science (decision No. 98104) I explained my approach to interpreting the words "could...reasonably be expected to..." in the context of section 21 of the Act. I stated that "in arriving at a decision to claim a section 21 exemption, 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." More recently, in the case of Mr ABM & Others and the Office of the Revenue Commissioners (decision No. 99017), I adopted this approach in reference to section 23(1)(a).

The Department argues that disclosure of those records relating to the amalgamation of the herds could prejudice and impair the fairness of civil proceedings by allowing the persons taking the proceedings to be aware of the evidence which the Department may use in defence of its action. In the case of the remaining records, viz. those relating to alleged breaches of the Animal Health Regulations, it argues that you would not be aware of the details in relation to the investigations carried out or the methods and procedures employed for the investigation of offences or the prosecution of the offenders. It says that these records will be relied upon by the Department in the course of its defence of proceedings in the High Court and in prosecuting the case in the District Court or as corroborative or rebuttal evidence in either proceeding. The Department argues that disclosure of the records would prejudice and impair the Department's ability to defend the proceedings in the High Court or to prosecute the case in the District Court and that disclosure would also prejudice or impair the fairness of these proceedings.

In summary, it seems to me that the Department's argument is that to allow you to be aware of the contents of the records at issue could prejudice or impair the fairness of the pending court proceedings. This is clearly a claim for exemption in accordance with section 23(1)(a)(iv). I accept that disclosure of these records would allow you to be aware of the evidence which the Department may use in its defence. However, the Department has not explained how it considers that such disclosure would be likely to prejudice or impair the fairness of the pending proceedings. It seems to me that the mere fact that disclosure of certain information might weaken the prosecution or strengthen the defence is irrelevant as such disclosure would not, of itself, damage the fairness of the proceedings. I accept that a situation could arise where disclosing the evidence in advance could give rise to such a harm, e.g. where to do so might give rise to evidence being manufactured or destroyed. However, no specific argument has been made by the Department along these lines in this case. In the circumstances, and having regard to the provisions of section 34(12)(b) of the FOI Act as set out above, I find that section 23(1)(a)(iv) does not apply to these records.

The Department's argument as to why section 23(1)(a)(i) might apply is less clear. However, if its argument is that merely making you aware of the contents of the records could give rise to any of the harms identified in section 23(1)(a)(i), then my findings in respect of section 23(1)(a)(iv) equally apply. The Department has not shown how your being made aware of the Department's evidence or of the methods and procedures used to investigate alleged breaches of the Animal Health Regulations by you could give rise to any of the harms identified and in the circumstances, I find that section 23(1)(a)(i) does not apply.

The Department does, however, draw my attention to my findings in the case of Messrs AAU and the Department of Agriculture and Food (decision number 98086) on the question of the applicability of section 23(1)(a). In that case a prosecution was contemplated by the Department but had not commenced. I accepted that the investigations in that case were not complete until such time as a decision was made either to prosecute or not to prosecute. I found that, in that case, an investigation was still ongoing and that a prosecution had not commenced but that there was a strong possibility that a prosecution would result. I explained that I considered that the arguments in favour of release or relevant records were weak and remained weak until such time as the investigation has been completed and a prosecution has been concluded or a decision has been taken not to institute a prosecution.

The Department argues that it reads my findings as relating to section 23(1)(a) and points out that the prosecution of both cases relevant to this request have not been concluded, nor has the hearing of evidence in either case commenced before the Courts. It seems that the Department's view is that the records at issue in this case should not be disclosed as the proceedings have not been concluded.

My comments in case 98086 were made in circumstances where an investigation was ongoing and where I decided that release of some of the information in the records could reasonably be expected to prejudice or impair the ongoing investigation. In arriving at decision 98086, however, I was conscious that circumstances differ from case to case and, accordingly, my decision did not have absolute applicability.

With regard to the particular applicability of sections 23 (1)(a)(i) and (iv) it is clear that there will be occasions when, given the circumstances of the case, release of relevant records during an investigation of offences could prejudice or impair the investigation and, by extension, the prosecution of offenders. I have articulated some of these earlier in this decision and in my findings in the case of Mr. and Mrs. ABJ and the Office of the Revenue Commissioners (review number 98102). I am also satisfied that, for similar reasons, in certain cases after an investigation has concluded but before an intended prosecution has commenced, release of certain records could prejudice or impair the prosecution of offenders. Indeed, where such a scenario arises, it might not always be prudent to release such records under the Freedom of Information Act until the prosecution has concluded.

In this case, I am satisfied that the Department has completed its investigations of the matters which are the subject of court proceedings, given that a decision has already been taken to prosecute and that a decision has already been taken in respect of the amalgamation of the herds. The issue requiring consideration here is whether the disclosure of the records before the prosecution concludes could reasonably be expected to give rise to one or more of the harms identified in sections 23(1)(a)(i) or (iv). As already stated I have not been presented with any evidence to suggest that this may be the case.

Section 21(1)(a)
As I have indicated above, it seems to me that the Department no longer wishes to rely on the exemption contained in section 21(1)(a) of the FOI Act in support of its decision to refuse access to the records at issue in this case. However, for the avoidance of any doubt, and given that the Department also cited this exemption in its initial decision, I have set out below my findings in respect of the applicability of this exemption. Section 21(1)(a) provides that a public body may refuse access to information if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the body concerned or the procedures or methods employed for the conduct thereof. As with section 23, I take the view that 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 Department argues that release of certain records could prejudice the effectiveness of tests, examinations, investigations and enquiries conducted on behalf of the Department and the procedures and methods employed for the conduct of same in relation to this and subsequent similar cases. However, it has not, in my view, explained how such harm could occur. It is not clear to me that release of records which would disclose to you the procedures used or the outcome of the Department's investigations could, in itself, prejudice the effectiveness of the investigation of offences allegedly committed by you, the investigation of future similar investigations or the procedures used in such investigations. Furthermore, no specific argument has been made by the Department as to how such harm could occur. In the circumstances, and having regard to the provisions of section 34(12)(b) of the FOI Act, I find that section 21(1)(a) does not apply.

Section 28
Section 28 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. For the purposes of the Act personal information is information about an identifiable individual that (i) would ordinarily be known only to the individual or to his/her family or friends or (ii) is held by a public body on the understanding that it would be treated by it as confidential. The Act details twelve specific instances of information which is personal without prejudice to the generality of (i) and (ii) above and makes it clear that it includes 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 public body concerned relates to the individual.

Given that Y and Z have given their written consent to the release of all personal information relating to them, I have not considered the applicability of section 28 in respect of such information. Having examined the records at issue in this case, it seems to me that the question of whether the provisions of section 28 apply must be considered, therefore, in the case of records numbered 417, 420, 423, 426, 427, 428, 429, 430, 431, 432, 434, 435 and 436.

Records numbered 417, 427, 435 and 436 contain, among other things, details of cattle purchased by various individuals other than yourself, i.e. the names and addresses of the individuals, cattle tag numbers and, in some cases, the price paid. Records 420, 423 and 426 also refer to parties other than yourself. I am satisfied that such information is personal information about those individuals for the purposes of the FOI Act. I find therefore that section 28 applies to those parts of records 417, 420, 423, 426, 427, 435 and 436 which relate to third parties.

Records 428 to 432 make up a five page report prepared by an official of the Department which contains details of the Departments dealings with a third party. While you are mentioned in the report at pages 428 and 432, the remainder of the report relates solely to the affairs of the third party. I am satisfied that section 28 applies to records 429, 430 and 431 in full and 432 in part. In my view, record 428 contains (i) personal information about you, (ii) personal information about a third party and (iii) joint personal information about you and a third party. I am satisfied that section 28 applies to the information contained in this record relating to personal information about a third party.

In respect of the joint personal information contained in the record, the Freedom of Information Act, 1997 (Section 28(1)) (Amendment) Regulations, 1998 provide that, where a record contains joint personal information, i.e. personal information about two or more individuals, third party information must, subject to the public interest consideration specified in section 28, remain protected. This means that the public body must refuse access to joint personal information unless it is considered that, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the third party to whom the information relates should be upheld. I find that section 28 applies to this joint personal information.

Record 434 is a covering note with the five page report described above attached. While your name appears in the record, the contents of the record relate solely to a third party. I am satisfied that section 28 applies to this record.

The Public Interest
In my view, there is no positive public interest in releasing to you records 429, 430, 431 or 434 or in releasing to you the personal information relating solely to third parties contained in records 417, 420, 423, 426, 427, 428, 432, 435 and 436 which would outweigh the public interest in protecting the right to privacy of those individuals.

In respect of the joint personal information contained in record 428, I note that this information is also contained in the book of evidence which was served on you in respect of the District Court Prosecution. It seems to me, therefore, that release of this information could have no, or at worst, minimal, impact on the privacy of the third party as you are already aware of its contents. Furthermore, the FOI Act implicitly recognises that there is a strong public interest in your seeing personal information about yourself, particularly if there is a possibility that such material might adversely affect you. I am satisfied that, on balance, there is a greater public interest in releasing the joint personal information contained in record 428 to you. I should add that while I had the option of consulting the third party in question about the release of this particular information, I did not consider that consultation with the third party was required or necessary in this instance given that the information relating to the third party has already been disclosed to you.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby vary the decision of the Department in this case. While I have decided that the Department was correct to refuse access to records 429, 430, 431 and 434, I direct that you be given

1. access in full to records numbered 233, 390, 418, 419, 421, 422, 424, 425, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 451, 452, 453, 454, 454A, 454B, 454C, 454D, 454E, 454F, 456, 456A, 457 and 457A,
2. partial access to records numbered 417, 420, 423, 426, 427, 428, 432, 435 and 436 with the deletion of personal information as described in the attached schedule.

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

Kevin Murphy
Information Commissioner