Case 000282. Request for records relating to a prosecution under food hygiene legislation - whether release was prohibited by section 54(3) of the Health Act, 1947 - section 32 -whether legal professional privilege had been waived - section 22(1)(a) - whether release of the records disclosed personal information about the person named as defendant in the prosecution - section 28(1)

Case Summary

Facts

The requester sought all records relating to a particular prosecution by the Board following an inspection under the Food Hygiene Regulations. The Board refused the request, saying that release of the information sought was prohibited by the Food Hygiene legislation under which the inspection was carried out, and so section 32 of the FOI Act applied (as the legislation concerned was not referred to in the Third Schedule of the FOI Act). The wording of the legislation in question prohibited the release of "information gathered on foot of an inspection" - the Board interpreted the prohibition as applying to all records in any way relating to its investigation, rather than just those records containing information gathered on foot of an inspection. Thus, even when the requester narrowed the scope of his request to two records relating to contacts made by third parties in connection with the case, the Board still maintained that the Food Hygiene legislation prohibited the release of the records concerned, because, according to the Board, the records were created as a consequence of the inspection for the purposes of the enforcement of the [Food Hygiene] Regulations and this included the records the subject of the narrowed scope of the request.

Decision

Having regard to the Principal Regulations concerning food hygiene, [the Food Hygiene Regulations, 1950 (S.I. 205 of 1950)], the Commissioner found that records which concern decisions as to what action should be taken by the Board on foot of an inspection or examination, or records concerning the implementation of any such action, cannot be said to comprise records which disclose information gathered "by virtue of inspections". He found that records disclosing information gathered "by virtue of inspections" may be characterised as records containing facts and raw data (and any analysis deriving from those facts and raw data) which were extracted in the course of an examination or inspection. He also commented that follow-on records containing information identical with, or of the same type as, information actually acquired "by virtue of inspections", are likely to belong to the category covered by the non-disclosure provisions.

The Commissioner also examined the wording of the European Council Directive 89/397/EEC which sought to harmonize food hygiene standards in the European Union and on foot of which section 54 of the Health Act, 1947 (under which, in turn, the Food Hygiene Regulations were made) was amended to reflect its requirements. As regards non-disclosure requirements, Article 12 of the Directive provides that member states shall provide that inspectors "shall be bound by professional secrecy", which, taken in conjunction with the wording of the Preamble to the Directive, the Commissioner interpreted as requiring that inspectors shall not reveal trade or manufacturing secrets to which they gain access in the course of carrying out the various operations which comprise "control"; nor shall they reveal information which would prejudice the right to appeal of the affected parties. He did not find any support in Article 12 of Council Directive 89/397/EEC for the notion that a blanket ban should apply to the release of information relating to the entirety of an investigation by a "competent authority" into the food hygiene standards of a particular enterprise; nor in support of the notion that information relating to a decision, on whether or not to prosecute an alleged breach of standards, should be prohibited from disclosure. He found that the records comprised in the narrowed scope of the request were not covered by the exemption contained in section 54(3) of the Health Act 1947 and thus were not exempt under section 32 of the FOI Act.

The Commissioner also considered the application of a number of other provisions of the FOI Act to the records at issue. He accepted that one of the records, which was created by the Board for transmission to its legal team with the dominant purpose of preparation for litigation, was initially exempt under section 22(1)(a). However, it was evident from the file that the legal team for the Board had sent a copy of the record in question to the legal team for the defendant, in the course of the legal action that was initiated on foot of the inspection. There appeared to have been no limits imposed by the Board's legal team as to what the legal team for the defendant could do with this record. Thus, the Commissioner found that legal professional privilege had been waived in respect of this record and so, the Board could not rely on section 22(1)(a) of the FOI Act in refusing to release it. He found that the record, with the exception of one reference contained therein, related to the business affairs of the person named as defendant, rather than to his personal affairs and that section 28(1) did not apply to the majority of the record. The Commissioner directed that the one reference to the personal affairs of the defendant be withheld under section 28(1) of the FOI Act and that the public interest did not warrant the release of the reference in question.

Date of Decision: 08.05.2003

Our Reference: 000282

08.05.2003

Mr X

Dear Mr X,

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of the Western Health Board (the Board) on your FOI request of 18 April 2000. At the outset, I would like to apologise for the long delay which has arisen in dealing with your case. This has been due to pressure of work in this Office as well as to the complexity of some of the issues raised in this particular review.

Background

In your request to the Board on 18 April 2000 you sought "[a]ll documentation, reports, correspondence, etc. relating to the prosecution by the Western Health Board of Mr Y/otherwise ABC Ltd of [place]." The prosecution related to an offence under the Food Hygiene Regulations. On 1 June 2000, the Board refused your request, saying that release of the information sought was prohibited by Food Hygiene Regulations and was thus exempt from release under section 32 of the FOI Act. This decision was upheld following your request for internal review. On 19 June 2000, you applied to this Office for a review of the Board's decision.

In the course of a telephone discussion with Ms. Moran of this Office on 1 May 2002, you raised the issue of third party representations having been made to the Board in relation to the prosecution. I note that the Board had not, unfortunately, provided you with a schedule of the records covered by your request. However, Ms. Moran was able to clarify that two such records exist. You then decided to narrow the scope of your request to records on the Board's file which refer to contacts with the Board made a by third party in respect of the prosecution. This Office then sought the views of the Board on the question of releasing these two particular records. In its response of 15 May 2002, the Board maintained the position that both records are exempt from release under the FOI Act; it maintained that the two records were created "as a consequence of the inspection for the purposes of the enforcement of the [Food Hygiene] Regulations" and that "to release any information directly related to the inspection/investigation would be contrary to Section 20 of SI 85 of 1998". The Board also contended that one of the records is exempt from release as it is protected by legal professional privilege.

In conducting this review I have had regard to correspondence and e-mails between you and Ms Moran, Investigator, as well as details of a number of telephone conversations between you and Ms Moran. I have taken into account Ms Moran's letter to the Board dated 20 December 2001, her subsequent e-mails of 2 May 2002 and 26 March 2003, and the Board's replies dated 24 January 2002, 15 May 2002 and 15 April 2003. I have considered Council Directive 89/397/EEC of 14 June 1989 on the Official Control of Foodstuffs, Council Directive 93/99/EEC of 29 October 1993 on the subject of additional measures concerning the Official Control of Foodstuffs, the Health Act, 1947 (as amended) and the Food Hygiene Regulations, 1950 to 1989. Finally, I have had regard to the provisions of the FOI Act itself as well as to the records on the Board's file, copies of which were supplied to my Office for inspection.

Scope of Review

The issue in this review is whether or not the Board is justified, in accordance with the terms of the FOI Act, in refusing you access to the two records on its file concerning contacts made by third parties in relation to the Board's prosecution of Mr Y/ otherwise ABC Ltd. The records in question are numbered 48 and 50 in the file provided to my Office by the Board.

Findings

As a preliminary point, I would draw attention to the provision at section 34(12)(b) of the FOI Act which states:

"In a review under this section—

( b ) a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

What this means, in the present context, is that the onus rests with the Board to show that its refusal of the two records in question was justified in terms of the FOI Act.

Enactments Relating to Non-Disclosure of Records - Section 32

Section 32(1)(a) of the FOI Act provides that a request shall be refused if:

"disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule)".

The Third Schedule of the FOI Act specifies certain provisions of various statutes which prohibit the release of information but which are excluded from the application of section 32 of the FOI Act. In other words, if a provision of an enactment which prohibits release of particular information is listed in the Third Schedule, a public body cannot rely on section 32 of the FOI Act in withholding a record containing that information. The particular provisions relied upon by the Board, as prohibiting the release of the records in this case, are not specified in the Third Schedule to the FOI Act. Accordingly if those provisions do apply to the records, the Board would be obliged to refuse access to them because of section 32(1)(a) of the FOI Act.

Non-Disclosure Provision Relied on by Board

I understand that the Board carried out the inspection in question in the context of its enforcement of the Food Hygiene Regulations, 1950 to 1989. These Regulations were made under the provisions of the Health Act, 1947 (as amended by S.I. No 333 of 1991 - the European Communities [Health Act, 1947, Amendment of Section 54 and 61] Regulations, 1991). Section 54(3) of the Health Act, 1947 (as amended) provides that "[a] person who has gained access to information by virtue of inspections made in the enforcement of Regulations made under this section shall not disclose such information unless it necessary to do so for the purpose of the enforcement of these Regulations." The Board's position is that release to you of the two records in question, or of any one of those records, is prohibited by section 54(3) of the Health Act, 1947 (as amended).

In the course of this review, the Board drew attention to the European Communities (Official Control of Foodstuffs) Regulations (S.I. No. 85 of 1998) which at article 20 contain a prohibition on disclosure of information in terms which are broadly similar to the prohibition contained at section 54(3) of the Health Act, 1947 (as amended). The Board appears to be arguing that both prohibitions operate in this case.

It would appear that the law in Ireland in the area of food hygiene and food safety is quite complex involving, as it does, the interaction between (a) Irish statutes which pre-date European Community Directives on the control of foodstuffs and (b) the European Community Directives on the control of foodstuffs and Irish statutes designed to implement those Directives in Ireland. There may well be questions as to the authority under which some regulations were made as well as doubts regarding the validity of certain of the regulatory provisions. However, it will only be necessary to deal with these complexities where it is established that the wording of the provisions relied upon by the Board actually encompass the two records at issue in this particular review.

For the purposes of considering this issue, I am proceeding on the basis that the two separate provisions may be treated as identical.

Board's Contentions

Both provisions provide for the non-disclosure of information gathered "by virtue of inspections". Ms Moran put it to the Board that the two records at issue in this case could not be said to disclose information gathered "by virtue of inspections" and that the non-disclosure provisions could not apply to such records. However, the Board's view is that "all records containing information were created as a consequence of the inspection for the purposes of the enforcement of the [Food Hygiene] Regulations and this includes records numbered 48 and 50". The Board also says it is relying on advice from the Attorney General's Office to the effect that "even though the SI specifically stated 'inspections' throughout, the spirit of the SI is to cover all documentation relating to the inspection/investigation as a whole". Other than referring to the fact that it had access to legal advice on the issue, the Board opted not to provide any further elaboration on the detail of that advice nor on the context in which it was sought and provided.

Analysis

I am not persuaded by the Board's broad interpretation of these non-disclosure provisions. I note that the Principal Regulations concerning food hygiene, the Food Hygiene Regulations, 1950 (S.I. 205 of 1950), do not define what is meant by the term "inspection". However, I note that the Principal Regulations provide that the word ""inspect" includes "examine" and the word "inspection" includes "examination"". It seems to me that records disclosing information gathered "by virtue of inspections" may be characterised as records containing facts and raw data (and any analysis deriving from those facts and raw data) which were extracted in the course of an examination or inspection. Records which concern decisions as to what action should be taken by the Board on foot of an inspection or examination, or records concerning the implementation of any such action, cannot (with one proviso) be said to comprise records which disclose information gathered "by virtue of inspections". This conclusion is subject to the important proviso that where such follow-on records contain information identical with, or of the same type as, information actually acquired "by virtue of inspections", then such follow-on records are likely to belong to the category covered by the non-disclosure provisions.

In forming this view, I have also looked to European Council Directive 89/397/EEC which sought to harmonize food hygiene standards in the European Union and on foot of which the Health Act, 1947 was amended (by means of S.I. No. 333 of 1991) to reflect its requirements.

Generally speaking, as regards Directives themselves, Article 189(3) of the Treaty of Rome (now Article 249 of the consolidated Treaty establishing the European Community) states that "[a] directive shall be binding, as to the result to be achieved, but shall leave to the national authorities the choice of form and methods". In other words, a member state must ensure that the purpose of a Directive is achieved but a member state may choose the means by which it ensures that this happens.

Council Directive 89/397/EEC deals inter alia with "verification of the compliance of foodstuffs with legislation on foodstuffs". It provides that, in the carrying out of inspections to verify such compliance, the legitimate rights of enterprises, such as the right to manufacturing secrecy and the right of appeal, must be preserved.

Article 1 of the Directive states that, for the purposes of the Directive, "official control of foodstuffs" (hereinafter called "control") means "an inspection by the competent authorities" of the compliance of various foodstuffs and materials with certain standards. Article 6 lists what may be subject to inspection by inspectors in determining whether or not food hygiene standards are being met. Article 6 goes on to provide that inspections may be supplemented inter alia by interviews and by the reading of values by the competent authority with its own instruments. Article 9 provides that inspectors may take note of written and documentary material and may make copies of, or take extracts from, such material. It seems to me that the operations required to be carried out by the inspectors are consistent with a physical examination of a premises or vehicle to establish particular facts.

As regards non-disclosure requirements, Article 12 of the Directive merely provides that member states shall provide that inspectors "shall be bound by professional secrecy". From the wording of this Article, and from the wording of the Directive's Preamble that legitimate rights of an enterprise (such as manufacturing secrecy and the right of appeal) must be preserved, it seems to me that the purpose of Article 12 is to ensure that inspectors shall not reveal trade or manufacturing secrets to which they gain access in the course of carrying out the various operations which comprise "control"; nor shall they reveal information which would prejudice the right to appeal of the affected parties. I find no support in Article 12 of Council Directive 89/397/EEC for the notion that a blanket ban should apply to the release of information relating to the entirety of an investigation by a "competent authority" into the food hygiene standards of a particular enterprise; nor does the Directive support the notion that information relating to a decision, on whether or not to prosecute an alleged breach of standards, should be prohibited from disclosure.

Having regard to my analysis as set out above, and taking account also of the ordinary meaning of the language used in the Irish legislation, I find that the wording of the non-disclosure provisions relied upon by the Board does not support the interpretation placed on those provisions by the Board. I find that the Board has not met the test set down by section 34(12)(b) of the FOI Act which requires it to justify the refusal of access to the records sought. Finally, I find that there is nothing in Council Directive 89/397/EEC, which is the effective authority for both of the non-disclosure provisions relied upon by the Board, to support the imposition of a broad-based non-disclosure requirement along the lines contended by the Board.

Accordingly, I find that the two records in question are not covered by the non-disclosure provision of section 54(3) of the Health Act 1947 (as amended); nor are they covered by the non-disclosure provision at article 20 of S.I. No. 85 of 1998. Consequently, I find that the records are not exempt from release to you under section 32 of the FOI Act. In the light of this finding it is not necessary to consider the other complexities of the law in relation to food hygiene and food safety. However, I must consider whether one of the records, as contended by the Board, is protected from release because of legal professional privilege.

Legal Professional Privilege - Section 22

The Board contends that record 50 is exempt from release as it qualifies for legal professional privilege and that section 22(1)(a) of the FOI Act applies. Record 50 is a letter, dated 28 March 2000, from the Principal Environmental Health Officer to the Board's solicitor, informing the solicitor that he (Principal Environmental Health Officer) had received a telephone call from a named public representative. The letter outlines the details of the conversation which took place between the Principal Environmental Health Officer and the public representative.

Section 22(1)(a) provides that a request for a record shall be refused if it "would be exempt from production in proceedings in a court on the ground of legal professional privilege". While the issue of legal professional privilege is a complex one it is possible to say, in general terms:

• the purpose of the privilege is to aid the administration of justice, and,
• the Courts will only grant such privilege where to do so supports the public interest in the proper conduct of the administration of justice and where this outweighs the disadvantage arising from a restriction on the disclosure of all the facts, and,
• legal professional privilege protects confidential communications.

It has been the practice of the Courts to accept that legal professional privilege applies to the following:

• confidential communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and
• confidential communications made between the client and a legal adviser, or the legal adviser and a third party, or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.

I have had regard to this practice in reviews I have conducted to date where the application of section 22(1)(a) is at issue. In this case, I accept that the letter was sent to the Board's solicitors in the context of a prosecution by the Board under the Food Hygiene Regulations. I am satisfied that, in the normal course, such a communication is one which attracts legal professional privilege on the basis that it was a confidential communication made between the client and a legal adviser, the dominant purpose of which is the preparation for contemplated/pending litigation, i.e. a prosecution under the Food Hygiene Regulations.

However, I note that, on 6 April 2000, the Board's solicitors sent a copy of this letter to the solicitors for the defendant in the intended prosecution. It is clear that this action was deliberate and not in any sense arising from a mistake or a misunderstanding. I also note that, on 6 April 2000, the Board's solicitors notified the Board that it had provided the solicitors for the defendant with a copy of the letter (record 50). There is nothing on file to suggest that the Board was anything other than in full agreement with the actions of its solicitors. It is my view that the privilege, which had hitherto attached to the letter in question, was waived by the Board when its solicitors sent a copy of the letter (record 50) to the solicitors for the defendant. The communication ceased to be a confidential one in that it had now been made available to the defendant and his solicitors without any attempt, in the letter of 6 April 2000, to put any limits on the use to which the defendant or his solicitors could put the letter dated 28 March 2000 (record 50).

Ms Moran put it to the Board, in her email dated 26 March 2003, that privilege appeared to have been waived on record 50 and asked the Board if it wished to comment on this. In its response dated 15 April 2003, the Board did not address the issue. I note that, in a conversation between the Board and Ms Moran on 14 April 2003, the Board indicated that it accepted that the letter had been passed to the other side and that it did not intend to comment on whether or not privilege had thus been waived. I am not satisfied, in the light of section 34(12)(b) of the FOI Act, that the Board has demonstrated that privilege has been retained. In these circumstances, I believe it is not now possible for the Board to claim privilege in respect of this letter and I find that it is not exempt from release to you under section 22(1)(a) of the FOI Act.

Personal Information - Section 28

I have considered whether release of the records would involve the disclosure of personal information about either the defendant or the public representative and thus, whether the records are exempt under section 28(1) of the FOI Act, which provides that a request for access to a record shall be refused, where such disclosure would result in the release of personal information about a person other than the requester.

The prosecution by the Board was against ABC Ltd. rather than against a natural person. It appears that the Board's original summonses named Mr Y as the defendant; however, it appears that during the court hearing, the summonses were amended to the name of ABC Ltd. In its submission of 15 April 2003, the Board says that "the title of the letter dated 28 March 2000 is incorrect and may be misleading if released to a [t]hird [p]arty"; furthermore, it says that release of record 50 would be "unfair to Mr Y" in the light of the change of defendant.

However, Mr. Y is a director of ABC Ltd. and this is a matter of public record. It seems to me that, regardless of whether the final summonses were amended from the name of Mr. Y to that of his company, it is clear from the context of records 48 and 50 that the references to Mr. Y are references to him in his business capacity rather than references to any aspect of his private or personal life.

However, there is one small element of record 50 that, in my view, can be said to relate to the personal affairs of Mr Y. While I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of record 50, and indeed the portion thereof that I consider to relate to the personal affairs of Mr Y as opposed to his business interests, is somewhat limited. I am satisfied that this reference (the remainder of the first sentence of the second paragraph from the word "... Committee" onwards) is exempt under section 28(1) of the FOI Act, in that it contains information about an identifiable individual that, in the normal course, would be known only to the individual or his family or friends. I have considered whether there is a public interest in the release of the reference in question. It seems to me that release of the record, in the absence of this reference to Mr Y's personal affairs, satisfies the public interest in the Board being as open and accountable as possible as to how it performed its functions in this case. On the other hand, there is also a public interest in preserving the right to privacy of individuals, as recognised by the Long Title of the FOI Act, and indeed by the wording of section 28(5)(a) itself. On balance, I do not consider that the public interest warrants release of the reference in question and I find that the content of the first sentence of the second paragraph from the word "... Committee" onwards (14 words in total) is exempt from release.

In these circumstances, I find that, subject to the deletion of the reference commented on above, disclosure of records 48 and 50 does not involve disclosure of personal information about Mr. Y and that the records are not exempt by virtue of section 28(1) of the FOI Act.

In the case of the public representative involved, it is quite clear that he contacted the Board in his official capacity and, therefore, disclosure of the records does not amount to the disclosure of personal information about him.

Commercially Sensitive Information - Section 27

The Board, in its submission dated 15 April 2003, also contends that section 27(1)(b) of the FOI Act applies to record 50. Section 27(1)(b) provides that a request for a record shall be refused if the record contains "financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation." The Board says that "[t]he name Y would be synonymous with other food premises that operate in [place] under the name 'Y'. If record 50 was released with the name 'Mr Y' included, it may be implied that the Board had taken a successful prosecution against him. This information may be detrimental to other food premises operating under the Y name, resulting in a material financial loss to those companies".

It is not immediately clear if the Board is referring to all businesses operated by Mr. Y, or to all food business operating in [place] under the Y name; however, section 27 clearly refers to the business of the person to whom the information relates. As outlined already, the final court summonses were amended to read the name of ABC Ltd. and not Mr Y, as defendant. The requester says, in his application to this Office, that the case was originally listed for hearing at [name of particular District Court] on [date], whereupon an application on behalf of the defence to adjourn the hearing until [date] was granted. When the case was finally called on [date], the requester submits that the court was told that there would be a plea of guilty to a reduced number of summonses. He goes on to say that it had been agreed between the parties that the name of the defendant be changed to ABC Ltd. I note that record 87 on the Board's file also refers to the adjournment of the case until [date].

As outlined earlier, I have to be circumspect in my description of record 50 due to the requirements of section 43(3) of the FOI Acts (as amended). In summary, however, it is clear from the content of the record itself that the prosecution was ongoing at the time the letter was drawn up and I do not see how the success or otherwise of the Board's prosecution can be inferred from the record's contents. Indeed, it strikes me that, even if the name of the defendant had not been amended, the outcome of the court hearing would still not be evident from the contents of record 50. Furthermore, in the light of the fact that it is already a matter of public knowledge that steps were initially taken to prosecute Mr. Y in this matter, I do not consider that the Board has made a sufficient argument to support its contention that release of record 50 "may be detrimental" to "other food premises operating under the Y name". Furthermore, I note that the Board did not give an assessment of how likely it felt such an outcome to be.

Having regard to section 34(12(b) of the FOI Act, I also find that the Board has not justified its reliance on section 27(1)(b) of the FOI Act in relation to record 50.

***

In summary, I find that the Board was not justified in refusing to release records 48 and 50 to you and I find that they should now be released, subject to the deletion of the first sentence of the second paragraph of record 50 from the word "... Committee" onwards (14 words in total).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended) I hereby annul the decision of the Board to refuse you access to records 48 and 50 on its file relating to the prosecution by the Western Health Board of Mr Y/otherwise ABC Ltd of [place]. I direct that both records be released to you, subject to the deletion of the first sentence of the second paragraph of record 50 from the word "... Committee" onwards (14 words in total).

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 that decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Information Commissioner