The Commissioner's decision on the request for access to the records of Galway County Council dealing with the seizure, in March 1999, under the Control of Horses Act 1996, of three horses and their subsequent destruction, upheld Galway County Council's refusal of access to all but one such record on the basis that records did not exist. One record was found and released to the requester during the course of the review.

Case Summary

Issue

Whether the Council is justified, under section 10(l)(a) of the FOI Act, in its decision to refuse access to records concerning the seizure and destruction of three horses which were the property of the Applicant.

Decision

The Senior Investigator varied the Council's decision and directed it to grant access to one record which came to light in the course of the review; she found that the Council is justified in its refusal of access to further records on the basis that such records do not exist or cannot be found and that section 10(l)(a) of the FOI Act applies to those records.

Date of Decision: 27.11.2008

Review Application to the Information Commissioner Freedom of Information Acts 1997 & 2003 (FOI Act)

Background:

The Applicant's FOI request was made in a letter to the Council dated 21 May 2007. The Applicant requested, in relation to three horses which had been picked up from a farmer's pen in Co. Galway by a named haulage company on 23 March 1999 for the purpose of bringing them to Urlingford Pound in Kilkenny, the "paper trail" surrounding that event. Apparently, the basis for the seizure and detention of the horses was section 37 of the Control of Horses Act, 1996. Specifically, the applicant requested the following:

1 .Copy of the video from Urlingford Pound

2. Copy of horses vetted, markings taken and microchip numbers

3. Copy of Notice posted in Gort Garda Station

4. Copy of Notice posted in Urlingford Pound

5. Details of disposal - factory or otherwise; name of veterinary surgeon who oversaw the disposal

6. Copy of haulier's insurance.

The Council refused the FOI request in its decision dated 11 July 2007; the grounds for the refusal were stated to be that the information was "the subject of Court Proceedings". The Council's refusal of access did not cite any section of the FOI Act. The Applicant applied for an internal review of the decision on 26 July 2007. Following an interim apology for delay on 14 September 2007, a decision following internal review issued to the Applicant, outside the prescribed 3 week limit, on 26 October 2007. In that decision, the original grounds for refusal were not repeated; instead each element of the original request was dealt with individually, as follows:

1. A copy of the video from Urlingford Pound was refused in accordance with section 10(l)(a) of the FOI Act because it did not exist or could not be found after all reasonable steps to ascertain its whereabouts had been taken.
2. Access was granted to a copy of a letter dated 7 November 2001 from the haulage company to the Council's Law Agent. However, no reference was made to the records which had been requested in relation to vetting, marking and microchipping of the horses.
3. A copy of the Notice posted in Gort Garda Station was refused in accordance with section 10(l)(a) of the FOI Act because it did not exist or could not be found after all reasonable steps to ascertain its whereabouts had been taken.
4. A copy of the Notice posted in Urlingford Pound was refused in accordance with section 10(l)(a) of the FOI Act because it did not exist or could not be found after all reasonable steps to ascertain its whereabouts had been taken.
5. The request for details of the disposal of the horses and of the name of the veterinary surgeon who oversaw the disposal was refused for the reason that neither the details nor the name of the veterinary surgeon were records for purposes of the FOI Act.
6. The request for a copy of the haulier's insurance was refused in accordance with section 10(l)(a) of the FOI Act because it did not exist or could not be found after all reasonable steps to ascertain its whereabouts had been taken.

The Applicant applied to this Office on 9 October 2007 for a review of the Council's decision.

In carrying out this review, I have had regard to the following:the correspondence and telephone contacts between the Applicant and this Office since 9 October 2007;

• the correspondence between the Applicant and the Council relating to the FOI request;
• the submissions of the Council to this Office relating to the requested records;
• email and letter correspondence between the Council and this Office;
• the provisions of the Control of Horses Act, 1996 and, in particular, Part III thereof dealing with the Control of Horses, and
• the provisions of the FOI Act.

This review is confined to whether the Council is justified, within the terms of the FOI Act, in refusing the request for access to the records described above.

Submissions

.

Findings

Preliminary Matters

Firstly, in conducting this review, I have had regard to the provisions of section 34(12)(b) of the FOI Act which provides that "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 " This places the onus on the Council of showing, to the satisfaction of the Commissioner, that the decision to refuse access to the records at issue in this case is justified under the provisions of the FOI Act.

Secondly, I note that the Council refused the request on 11 July 2007 solely on the grounds that the information requested was the subject of court proceedings. It is important to be clear that the FOI Act does not provide for refusal of access to records in such circumstances without reference to the exemptions provided for in the Act. Additionally, lest there be any doubt, the head of a public body must disregard any belief or opinion s/he may hold as to the reasons any requester may have for making any FOI request (section 8(4) as amended refers).

Thirdly, I note that the Council contends that the Applicant's request for details of the disposal of the horses and of the name of the veterinary surgeon who oversaw the disposal are not "records" for purposes of the FOI Act (see item 5 in description of records above). Without prejudice to full consideration of their status by reference to the exemptions in the FOI Act, I find it necessary to comment that, in the circumstances of this case, it would, in my view, have been reasonable for the Council to take it for the purposes of FOI that, if the information sought was contained in any record held, it was potentially accessible.  

Statutory ProvisionsSection 10(l)(a)

It is clear that the relevant exemption is section 10(1)(a) which provides that:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if -(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. "

The Commissioner's role in such circumstances is one of reviewing the decision in question and deciding whether that decision was justified. This means that, as in any other review, the Commissioner must have regard to the evidence available to the decision maker and the reasoning used by him or her in arriving at the decision. The role of this Office is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether he or she was justified in coming to his/her decision in the case. The evidence in such cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, which formed the basis on which the decision maker has concluded that the steps taken to search for the records were reasonable. The Council is aware that, where appropriate, it is open to the Office of the Commissioner to visit the Council's offices to establish the nature and extent of the search carried out and/or to examine its record management practices.

In this case, the Council has provided details of its policy on the storage and disposal of records. However, that policy has little direct relevance in this particular case given that the Council's position in relation to most of the records is effectively not that they were misfiled or destroyed but that access was refused under section 10(1)(a) on the basis that they are not held. Indeed, as will be clear from what follows, questions arise as to whether certain records exist at all.

The Records

Record No. 1

The Applicant contends that a video of the horses arrival at Urlingford pound should exist and says that, when he queried why his horses had been taken so far from the point at which they were picked up, as opposed to nearer pounds (e.g. Ballinasloe or Loughrea) was advised that it was because of the video facilities for animals arriving at Urlingford. The Council has stated to this Office that it has "no information or records to concur with the statement that the reason why the horses were sent to Urlingford Pound as opposed to nearer horse pounds was because horses were routinely videoed on arrival". The horses in question comprised two mares (one in foal) and one gelding.

Given the submissions of the Council, I have no information on which to conclude that the video does exist and is held by the Council and I find accordingly that section 10(1)(a) applies here.

Record No. 2

While access was granted to a copy of a hand-written letter dated 7 November 2001 from the haulage company to the Council's Law Agent (copy originally attached to affidavit of discovery sworn by the Council on 29 May 2002) the Council contends that the records requested - "Copy of horses vetted, markings taken and microchip numbers. All horses are vetted on arrival and a copy sent back to Galway County Council" do not exist.

The Council has advised this Office that it has no information or records relating to the admission of the horses to Urlingford Pound. I note that section 38 of the Control of Horses Act, 1996 provides that where a horse has been detained as a consequence of a seizure, the relevant local authority or the Superintendent of the Garda Siochána may "cause to be attached to the horse such identification mark or device as the authority or the Superintendent sees fit". I also note that the website of South Dublin County Council outlines the procedure which follows the seizure of a horse under the Control of Horses Act, 1996 which applies at national level, viz.

"What happens when a horse has been seized?

Horses that have been seized are detained at the Council's Horse Pound in Urlingford, Co. Kilkenny. A detailed description of the horse is taken and it is scanned for a microchip. If the horse does not have one, a microchip is inserted. This is for identification purposes. The owner (if known) will be notified. Otherwise, a notice is displayed in a public place (usually a Garda Station) detailing the horse(s) seized and stating that if not claimed within 5 days the horses will be disposed of by sale at Urlingford Pound."

It seems unusual to say the least that any local authority would fail to create a record of what happened to three horses seized in accordance with a statutory provision (section 37 of the Control of Horses Act, 1996), transported by a haulier - whom I take it had a contract for services with the Council - some 125 km to a horse pound. This pound apparently routinely takes a detailed description of each horse detained following seizure and, if it does not already have one, implants a micro chip for future identification purposes. However, I accept the testimony of the Council which contends repeatedly to this Office that it holds no such records in this case. The FOI Act does not empower the Commissioner, in the course of a review, to adjudicate on how the Council performs its functions generally; a review extends only to whether or not the Council is correct in refusing access to particular records on the basis that they are exempt from release under the provisions of the FOI Act. Neither does the FOI Act require the Council to create records where such records do not exist or are not already held by it. The FOI Act does not provide for a right of access to records which ought to exist and, while one might expect such records to be created and retained, the adequacy of the administration generally or record keeping practices are not matters that can be addressed in this review.

While it was not a record which was explicitly included in the FOI request, the question of the Register of all seized or detained horses, the establishment and maintenance of which by the local authority is a mandatory provision of the Control of Horses Act (Section 42) was raised by this Office with the Council in an effort to trace records of the seizure/detention and 'putting down' of the three horses concerned. The Council confirmed to this Office that it does not have a register relating to these three horses and, indeed, that it does not have a register as envisaged by the said section 42. Subsequently, the Council advised this Office that a register of horses seized was not kept "in book form" and the only "register" maintained during this time was a typed schedule which contained details of the number of horses seized over the period between 14 March 1997 and 9 October 2001 (35 horses and one pony) and the horse pound to which the seized horses were referred. The schedule does not contain any level of detail or identification and it is hardly tenable to suggest, as the Council has done, that it satisfies the provision of section 42 of the Control of Horses Act. Section 42 provides that every register must contain at least the following particulars:

"(a) an identification reference,

(b) a description of the horse,

(c) the date of the seizure or detention of the horse

(d) particulars of the manner in which the horse is dealt with,

(e) details of the person by whom a horse is reclaimed,

(f) particulars of where the horse is detained. "

The Council confirmed to my Office that the Council has no formal procedure in place whereby a paper trail of the movement of seized horses is tracked. In response to a question as to whether procedures were in place to provide a paper trail to track the movement of seized horses from the point of seizure under section 37 of the Control of Horses Act to the point of destruction under section 39(7), the Council stated that there is "no formal procedure in place whereby a paper trail of the movement of seized horses is tracked".

Record No. 3

A copy of the Notice posted in Gort Garda Station was refused in accordance with section 10(l)(a) of the FOI Act because it did not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Council has provided documentary evidence that, on 11 July 2008, it wrote to the Garda Sergeant on whose instructions the horses were seized and who had stated that he had placed a notice on the notice board at Gort Garda Station on the day the horses were seized. It asked him to search his records to locate a copy of the notice in question. The Garda Sergeant's confirmation that he did not have either the notice or a copy of same was received by the Council on 15 July 2008. In these circumstances, I am satisfied that a copy of the notice stated to have been posted at Gort Garda Station on 23 March 2009 cannot be found at this point in time. Accordingly, I find that the refusal of access on the basis of section 10(1)(a) of the FOI Act is justified.

Record No. 4

A copy of the Notice posted in Urlingford Pound was refused in accordance with section 10(l)(a) of the FOI Act. I cannot ignore the fact that nine years have passed since the events in question took place. As with the previous record there is no information available to suggest that such record, if it ever existed, was retained and is now held by the Council. I find that the refusal of access on the grounds of section 10(1)(a) of the FOI Act is justified.

Record No. 5

This Office clarified to the Council that the details sought about the disposal of the horses and the veterinary surgeon involved should be regarded as records for purposes of the FOI Act and requested the Council state its position with regard to any records containing the requested details. The Council, in reply, advised that the only record containing details of the disposal of the horses was the record as described at Record No. 2 above i.e. a hand-written letter from the haulage contractor dated 7 November 200 1. Insofar as the disposal of the horses was concerned, the letter states only that "they were disposed of by putting them down" and makes no reference to any veterinary attention. I note the provisions of the Control of Horses Act, 1996 and, in particular, sections 39 and section 41. Section 39 includes provisions for the 'disposal' of horses ('dispose of' is defined in the Control of Horses Act, 1996 as "includes to sell or to give away or have destroyed, and cognate words shall be construed accordingly"). Section 41 provides for the destruction of detained horses which are in pain, distress or acute state of neglect etc. Such destruction is provided for after veterinary examination, "the opinion of the veterinary surgeon making the examination is that."the horse is in such pain or distress or state of acute neglect or so severely injured or diseased that it would be in the interests of the welfare of the horse, or the safety, health or welfare of other animals or persons it may come into contact with, to have it humanely destroyed, the local authority in whose functional area the horse is detained or the Superintendent or a person authorised by the authority or Superintendent as the case may be, may direct that the horse be so destroyed immediately or as soon as may be."

It is clear from the legislative provisions that the detention and disposal of animals is an area which is intended to be closely regulated. It is also clear that the destruction of an animal is an exceptional measure. The Applicant has made available to this Office a video of an RTE news extract (16 December 2002) which featured Urlingford Pound. In that extract, it is explained that destruction of horses detained at the pound is an extremely rare event. The example given is that in a period when 5,000 horse were admitted to the pound, 1,000 horses were re-homed and 26 were put down on veterinary grounds.

Overall, while I have great difficulty in accepting that, if the horses were put down as the Council and its agent indicates that they were, no contemporaneous records of that action exists, I accept the Council's contention that they do not hold these records. Accordingly, I find that the Council is justified in applying section 10(1)(a) of the FOI Act.  

Record No. 6

The request for a copy of the haulier's insurance was refused in accordance with section 10(l)(a) of the FOI Act. In the course of the review, a copy of the insurance cover note for the period in question was procured by the Council from the haulier following queries by the Investigator in this Office. Having examined a copy of that document which relates to a company with which the Council has a contract for services, I find that it does not contain any information which falls within the exemptions of the FOI Act. I find that the record should be released to the Applicant.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended), I hereby vary the Council's decision as follows:

• I annul the decision of the Council in so far as it relates to record No.6 and direct the Council to release that record to the Applicant
• With regard to the remaining records, I affirm the decision of the Council to refuse access to the records concerned.

Right of Appeal

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

Elizabeth Dolan

Senior Investigator

27 November 2008