Case 000103. Access to a report by the former Eastern Health Board of its investigation into an outbreak of salmonella amongst customers of a Take-away - whether the report was prohibited from release under an enactment not specified in the Third Schedule to the FOI Act, specifically SI No 85 of 1998 - section 32

Case Summary

Facts

The requester sought access to the report of the former Eastern Health Board (the Board) of its investigation into an outbreak of salmonella poisoning amongst customers of a Take-away. The Board refused access to the report on the grounds that the investigation was conducted pursuant to Statutory Instrument (S.I.) No. 86 of 1998, and that Article 20 of S.I. No. 85 of 1998 prohibits the disclosure of information gained by virtue of inspections carried out under S.I. No. 86 of 1998.

Section 32(1)(a) of the FOI Act provides that a request for a record 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 enactments which prohibit the release of information, but which are excluded from the application of section 32 of the FOI Act. S.I. No. 85 of 1998 is not contained in the Third Schedule to the FOI Act, and therefore, according to the Board, section 32 of the FOI Act applies to records relating to the inspection of the premises concerned. In the course of the review, the Board agreed to release part of the report and, thus, the Commissioner's review was confined to whether the refusal to release the remainder of the report was in accordance with the FOI Act.

Findings

The Commissioner examined the wording of the European Directives to which S.I. No. 85 of 1998 purports to give effect. She found that the records on the Board's file relating to matters other than the inspection itself are not covered by the non-disclosure provision of Article 20 of S.I. No. 85 of 1998. She concluded that the wording of Article 12 of Council Directive 89/397/EEC, taken together with 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) infers that the Directive's objective in this particular regard is to ensure:

• that inspectors do not reveal trade or manufacturing secrets to which they gain access in the course of performing the various operations that comprise control,
• that inspectors do not reveal information that would prejudice the right to appeal of the affected parties.

She went on to express her view that a correct interpretation of Article 20 of S.I. No. 85 of 1998 must take account, not only of the actual wording of that Article, but also of

• the content of the overall Statutory Instrument,
• the enactment by the Oireachtas of the FSAI Act, 1998 as well, crucially, as
• the content of the EU Directive which the Statutory Instrument purports to transpose into Irish law.

She noted that, in construing domestic legislation which implements European law, a "court is required to adopt a teleological approach to interpreting the former so as to achieve and implement the true scheme and purpose of the latter: Coastal Line Container Terminal Ltd v SIPTU [2000 HC] 1 IR 549 at 559, and ELR 1 at 11." (Murdoch's Irish Legal Companion, 2003) and said that she was satisfied that the "true scheme and purpose" of Council Directive 89/397/EEC, insofar as non-disclosure of information is concerned, involves a prohibition on disclosure which is considerably narrower than that suggested by a literal reading of the words of Article 20 of S.I. No. 85 of 1998. In the light of this, she found that the correct approach to the interpretation of Article 20 of S.I. No. 85 of 1998 is that it has effect only to the extent that it actually implements the provisions of the Directive. She found that the Directive does not prohibit the disclosure of information concerning an inspection other than information which would reveal a manufacturing or commercial secret, or information which would prejudice the legitimate right to appeal of an enterprise.

She found that the remainder of the report was not prohibited from release by S.I. No. 85 of 1998 nor by Council Directives 89/397/EEC and 93/99/EEC and, therefore, that section 32(1)(a) of the FOI Act could not be relied upon by the Board in refusing to release the remaining portions of the final report.

Date of Decision: 14.12.2004

Our Reference: 000103

14.12.2004

Ms X

Dear Ms 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 former Eastern Health Board (the Board) on your FOI request dated 8 November 1999.

At the outset, I would like to apologise for the very long delay which has arisen in dealing with your case. As you know from your contacts with my Office, we built up considerable work arrears due to the heavy volume of cases received in the period 1998 - 2000; this was at a time when our staffing allocation was not sufficient to cope with the workload. In April 2002, we changed to new working arrangements whereby we deal with both current cases and arrears cases together. While this has proven to be a positive development overall, it has resulted in further delays for some arrears cases, yours included. I appreciate that delays of the kind arising in this case are very frustrating for applicants such as yourself.

Background

Following an outbreak of salmonella food poisoning amongst customers of the [name deleted] Take-away (the Take-away) on 15 October 1999, you made an FOI request to the Board on 8 November 1999 for access to "all ...information e.g. contamination source, investigation findings, what action has been taken by the Health Board e.g. Legal proceedings against the owner Mr Y [name of the owner of the Take-away]". The Board refused your request on the grounds that release at that time would prejudice the "detection or investigation of offences". You sought an internal review, to which the Board did not reply, and you then made a request to this Office on 24 February 2000. On 2 May 2000, the Board told you that a court case was to be held on 28 July 2000 and that at the end of those proceedings "additional information can be released which will answer your queries".

I understand from the Board that it prosecuted the operator of the Take-away and that the case was heard in the District Court on 28 July 2000. According to the Board, the "accused company pleaded guilty to the offence. A fine of £500 was imposed and costs of £650 were awarded in respect of the breach" of the relevant legislation.

In conducting this review, I have had regard to your application to this Office, to correspondence sent to you by Ms Moran, Investigator and to details of various telephone conversations and emails between you. I have examined a copy of the Board's final report of its investigation into the particular salmonella outbreak. I have considered Ms Moran's letter to the Board dated 20 December 2001 as well as the Board's reply dated 24 January 2002, in which it agreed to release to you certain portions of its final report.

I have taken account of various pieces of legislation in relation to food hygiene and the control of foodstuffs, including European Council Directives 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; European Communities (Official Control of Foodstuffs) Regulations, 1998 (Statutory Instrument [S.I.] No. 85 of 1998), as amended by European Communities (Official Control of Foodstuffs) (Amendment) Regulations, 1999 (S.I. No. 210 of 1999); and the European Community (Hygiene of Foodstuffs) Regulations, 1998 (S.I. No. 86 of 1998).

I have considered letters sent by my Office to a distribution agent and an egg supplier mentioned in the Board's final report, in relation to whose businesses it could be said that release of the report might have a detrimental effect, as well as the responses received from these parties. I did not consult with the owner of the Take-away in the light of the Board's statement that the person referred to in the report was not the Take-away's last registered owner, and also because the Board informed my Office that the Take-away has since closed down. Finally, I have had regard to the provisions of the FOI Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003.

Scope of Review

I note that in your telephone conversation with Ms Moran of 2 May 2002, you agreed to confine your request to the Board's final report on the outbreak of salmonella at the Take-away. In the course of the review, the Board agreed to release the following portions of the final report:

Background 1: - paragraphs 1 & 2;
Background 2: - paragraph 1, lines 1 - 8, subject to the deletion of a comment referring to a number of hospital staff of a particular grade;
Membership of OCT
(Outbreak Control Team) - release in full;
Debriefing, page 1 - paragraph 1 & 2 in full;
Debriefing, page 1 - partial release of paragraph 3;
Debriefing, page 1 - paragraph 4, 5, & 6;
Debriefing, page 1 - partial release of paragraph 7;
Debriefing, page 2 - release in full;
Appendix 3 - release in full.

My review is confined to assessing whether or not the Board is justified, within the terms of the FOI Act, in refusing you access to the remaining portions of the final report which it has not released.

Findings

Preliminary Matters

The Board refused your request initially by reference to certain provisions at section 23 of the FOI Act, claiming that release would prejudice the effectiveness of investigations and/or the "enforcement of, compliance with or administration of any law". During the course of this review, and presumably having regard to the fact that the operator of the Take-away was successfully prosecuted, the Board claimed that its records (the final report) were exempt by reference to section 32(1) of the FOI Act. This provision exempts a record from release under the FOI Act where its disclosure is prohibited by an enactment (other than any one of a number of specific enactments set out in the Third Schedule to the FOI Act). In the course of this review, the Board made no specific argument in relation to the relevance of the section 23 exemption, initially relied upon, and I am proceeding on the basis that section 32 now represents the Board's justification for the refusal of the remaining portions of the final report. In any event, and having regard to the Board's successful prosecution of the Take-away operator, I can see no grounds for supporting a section 23 exemption in present circumstances. In the context that the Board is now relying on section 32 of the FOI Act as the basis for its refusal of the remaining portions of the final report, it is important to clarify the specific legislation under which the Board dealt with this salmonella outbreak. Unfortunately, the legislative provisions governing the involvement of the Board in food hygiene matters are somewhat complex.

Relevant Legislation

According to the Board, the Take-away was the subject of a number of inspections arising from the particular outbreak of salmonella. The Board says that these inspections were carried out under S.I. No. 86 of 1998. Article 9 of these regulations provides that a health board shall carry out control (that is to say "an inspection by the competent authorities" of the compliance of various foodstuffs and materials with certain standards) in accordance with S.I. No. 85 of 1998. In turn, Article 20 of S.I. No. 85 of 1998 provides that:

"A person who has gained access to information by virtue of inspections made in the enforcement of Regulations shall not disclose such information unless it is necessary to do so for the purpose of the enforcement of these Regulations. Any person who contravenes this paragraph shall be guilty of an offence under this Article".

It appears, therefore, that S.I. No. 86 of 1998, under which the inspections were carried out, imports the non-disclosure of information provision contained in S.I. No. 85 of 1998. Consequently, the Board is now refusing your request by relying on section 32(1)(a) of the FOI Act, which 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 enactments 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. In this case, Article 20 of S.I. No. 85 of 1998 is not listed in the Third Schedule of the FOI Act. On the face of it, at least, the Board would appear to be justified in refusing to release records relating to the inspection of the premises concerned.

At this stage, however, it is necessary to refer to the European legislation on control of foodstuffs, to which S.I. No. 85 of 1998 purports to give effect.

European Legislation on the Control and Hygiene of Foodstuffs

Generally speaking, as regards EU Directives, 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 that Member State may choose the means by which it ensures that this happens.

Council Directives 89/397/EEC and 93/99/EEC were given effect in Ireland by means of S.I. No. 85 of 1998.

Council Directive 89/397/EEC
This Directive provides that its subject is the "verification of the compliance of foodstuffs with legislation on foodstuffs". It acknowledges 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 defines "official control of foodstuffs" (hereinafter called "control") as meaning "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 and also sets out how the inspections may be supplemented by other operations. 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".

Article 12 of Council Directive 89/397/EEC was given effect in Ireland by means of Article 20 of S.I. No. 85 of 1998, which, as outlined above, purports to impose a ban on the disclosure of information gathered "by virtue of inspections", as opposed to requiring inspectors to be "bound by professional secrecy".

Council Directive 93/99/EEC
This Directive supplements Directive 89/397; its preamble includes a reference to ensuring that information exchanged between Member States (for administrative assistance purposes) "should be covered by the requirements of commercial or professional secrecy".

Specifically, Article 7 of Council Directive 93/99/EEC refers to the provision of information by one State to another for the enforcement of Regulations and provides that:

"1. Information forwarded ... is covered by professional secrecy."

Interestingly, Article 7(2) of Council Directive 93/99/EEC goes on to provide that:

" Where a Member State has rules permitting free access by persons to information held by competent authorities, this fact must be revealed at the time of the request to another Member State or during the exchange of information if no such request occurs. If the sending Member State indicates that the information involves matters of professional or commercial secrecy, the receiving Member State shall ensure that the information is not divulged more widely than is provided under paragraph 1. If it is not possible for the receiving Member State to restrict the giving out of the information in this way, it shall not be contrary to the terms of this Directive for the sending Member State to withhold the information."

The Directive acknowledges clearly that Member States, with which information is being shared, may well have regimes permitting access to information; while this may (or may not) present difficulties for a "sending" state, it is clear that the Directive does not require, or even expect, that Member States will apply a complete ban on the making of such information available to the public. While the Directive refers to the need to protect matters of a commercially sensitive nature, it is clear that it does not seek to interfere with access to information regimes in Member States and clearly envisages persons in such states validly obtaining access to information of the type that might be exchanged between states for administrative assistance purposes. I have been advised that, as far as the Directive is concerned, the Irish implementing legislation need not provide for an absolute ban on disclosure of information arising from inspections, and that Ireland may maintain an access to information regime which provides for access to such information.

Indeed, I note that Article 25 of S.I. No. 85 of 1998 reflects the wording of Article 7 of EC 93/99 with respect to exchange of information between competent authorities as being covered by "professional secrecy"; it goes on to acknowledge the existence of access to information regimes in other Member States which may request information for the purposes of administrative assistance. It specifies that information forwarded to Ireland for this reason shall be covered by "professional secrecy". However, it is perhaps surprising that S.I. No. 85 of 1998 does not reflect the existence in Ireland of the Freedom of Information Act. The FOI Act, 1997 was enacted in April 1997 with a built-in commencement date "on the date that is one year after the date of its passing", i.e. 21 April 1998. Statutory Instrument No. 85 of 1998, on the other hand, was made on 31 March 1998 and came into effect (with one small exception) on 1 April 1998.

There is a further difficulty with S.I. No. 85 of 1998 in so far as the non-disclosure provision at Article 20 is concerned. Article 24 of that Regulation deals with the provision of administrative assistance by health boards to one another and by health boards to the authorities of other Member States. Article 25 states that: "Information forwarded pursuant to Article 24 of these Regulations, in whatever form, is covered by professional secrecy." Accordingly, where one health board provides information to another health board for the purposes of these Regulations, that information is "covered by professional secrecy" in the hands of the receiving health board. This is a different, and lower level of restriction, than applies to the sending health board which appears to be bound by the terms of Article 20, i.e. any disclosure is prohibited unless it is necessary for the purposes of enforcement of the Regulations.

Taking Articles 20, 24 and 25 of S.I. No. 85 of 1998 together, the position would seem to be as follows: a health board, which has undertaken inspections under the food hygiene regulations, would appear to be bound by a restrictive prohibition on disclosure of information arising from those inspections; where that health board passes on that same information to another health board, in the context of the assistance envisaged at Article 24, the receiving health board is bound only by the requirements of "professional secrecy". It would appear that S.I. No. 85 of 1998 is internally inconsistent as to the standard of secrecy applying to records disclosing information acquired in the course of inspections.

Inspection versus Investigation

The Board takes the view that the non-disclosure requirement at Article 20 of S.I. No. 85 of 1998 extends not only to records containing information gathered by virtue of an inspection, but to all records containing information relating to the Board's investigation into a breach of food hygiene legislation. It says that advice received from the Attorney General's Office "states that S.I. 85 of 1998 refers to any information to which a person has access by virtue of an investigation" and that the "advice received confirms that release of any information directly related to the investigation would be contrary to Section 20 (sic) of SI 85 of 1998".

Neither S.I. No. 85 of 1998, nor Council Directives 89/397/EEC and 93/99/EEC, define what is meant by the term "inspection". However, it seems to me that records containing "information gathered by virtue of an inspection" can be described as being records containing facts and raw data (and any analysis using those facts and raw data) which are compiled in the course of an inspection of a premises to determine whether or not food hygiene standards are being complied with. I consider that records outlining such matters as control measures to be taken by the enterprise, or records relating to a health board's decision on whether or not to take further action on foot of the analysis of the facts and raw data, clearly cannot be regarded as records containing information "gathered by virtue of an inspection". Notwithstanding my comments further below on the conflict between the extent to which Council Directives 89/397/EEC and 93/99/EEC appear to seek to protect information gathered by inspectors in the course of their duties, and the interpretation of this aim as represented by Article 20 of S.I. 85 of 1998, I am of the view that records on the Board's file relating to matters other than the inspection itself, are not covered by the non-disclosure provision of Article 20 of S.I. No. 85 of 1998.

It appears to me that the wording of Article 12 of Council Directive 89/397/EEC, taken together with 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) infers that the Directive's objective in this particular regard is to ensure:

• that inspectors do not reveal trade or manufacturing secrets to which they gain access in the course of performing the various operations that comprise control,
• that inspectors do not reveal information that would prejudice the right to appeal of the affected parties.

I cannot see that the purpose of Article 12 was to impose a blanket ban on the release, by the inspecting authority, of all information which relates to, or emanates from, an investigation into the particular food hygiene standards of an enterprise. The disclosure ban, in this event, would extend to information relating to the ultimate decision of the investigating body on whether or not to prosecute the particular enterprise.

In summary, having regard to my analysis of Council Directive 89/397/EEC, I consider that the Board is incorrect in construing the non-disclosure provision of Article 20 of S.I. 85 of 1998 as extending to all records relating to its entire investigation into the particular salmonella outbreak, the subject of your FOI request.

Are the Irish Regulations ultra vires?

As set out above, I do not consider that Council Directive 89/397/EEC may be construed as seeking to impose a blanket ban on the release of all records relating to an investigation; rather it seeks to protect information acquired by inspectors in the course of their inspections. Taking this a step further, neither do I accept that the Directive's intention was to impose a complete ban on the release of all information gathered on foot of an inspection - rather it appears to me that its intention is to protect manufacturing secrets and rights of appeal, over and above any other rights of an enterprise.

The prohibition on disclosure in Article 20 of S.I. No. 85 of 1998 applies, on the face of it, to any information gained by virtue of an inspection. It would appear to apply equally in a situation where an inspection reveals that food hygiene and related standards are excellent as in a situation where those standards are completely unacceptable. With the exception of material disclosing trade secrets or other commercially sensitive information, there is no obvious reason why an operator who has been inspected, and whose standards have been found to be very high, would be opposed to having information gained from the inspection made available to the public. In fact, many operators might welcome the publication of such information.

It seems to me that the prohibition on release of information gathered by virtue of an inspection, as contained in Article 20 of S.I. No. 85 of 1998, goes far beyond the intended purpose of the requirement on inspectors, as contemplated by the Council Directives 89/397/EEC and 93/99/EEC, i.e., not to prejudice the right of an enterprise to maintain "professional secrecy", "commercial secrecy" and "the right to appeal". I hold the view that once inspectors take steps to protect information that constitutes a trade or commercial secret, and to protect information that, if released, could prejudice the right of appeal of the affected enterprise, then the Council Directives do not seek to go beyond that in terms of secrecy provisions.

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 former Eastern Health Board to refuse to release to you the final report of its investigation into the outbreak of salmonella at the [name deleted] Take-away in October 1999. Instead, I direct that the report be released in full, subject only to the deletion of the name and location of the distribution agent on page 5 of the report, the location of the egg supplier in the last paragraph of page 5 of the report, and the name and location of the same egg supplier, on page 1 of Appendix I to the report.

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

Emily O'Reilly
Information Commissioner