Whether the Department was justified in its decision to refuse access to records, concerning an incident relating to the applicant's cattle, under section 10(1)(a) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In October 2010, the Department was asked to investigate a number of cattle deaths from the applicant's herd which occurred in September 2010. These deaths were alleged to have resulted from the ingestion of animal feed purchased from a third party. In April 2012, the applicant made an FOI request to the Department (FOI/12/135), for access to records about this incident. In February 2013 the applicant applied to this Office for a review of the Department's decision and in October 2014 a decision was given in that case (reference number 130050).
The applicant's request under FOI/12/135 incorporated 52 separate questions. Under question 31.11(xviii), the applicant requested the Department to state how it had complied with EU Regulation 183/2005, Statutory Instrument no. 432 of 2009, and any other EU or National Legislation or Regulation. Under question 31.13(e)(xix), the applicant requested the Department to confirm whether or not it had carried out any inspections, audits, sampling, analysis and traceability from the original supplier of the vegetable feedstuff to the party which had supplied the applicant. The Department sought to rely on section 10(1)(c) of the Act in relation to both of these requests, i.e. it argued that granting these requests would cause a substantial and unreasonable interference with its work. The Department, however, did not offer to assist the applicant to amend the requests as required by section 10(2) of the Act, to ensure they no longer caused an interference with the work of the Department. The Department's decision to rely on section 10(1)(c) of the Act in relation to 31.11(xviii) and 31.13(e)(xix) was therefore annulled by this Office and it was directed to undertake a fresh decision making process in relation to these elements of the request.
On 23 October 2014, the Department issued a fresh decision in relation to these two elements described above. In its earlier review the Department had sought to rely on section 10(1)(c) of the Act in relation to 31.11(xviii) and 31.13(e) (xix). The Department was not bound to follow its original decision when it looked at the matter again and in its fresh decision the Department refused the records requested at 31.11(xviii) on the basis of section 10(1)(a) of the Act as it claimed no such records existed. The Department refused to release the records requested at 31.13(e) (xix) on the basis that it had already provided all records relating to the testing of 'mixed vegetables' under a previous FOI request. The applicant sought an internal review of this decision. The Department upheld the original decision at internal review. However, it released the records covered by 31.13(e)(xix) to the applicant again. The applicant applied to this Office for a review of the Department's decision and provided submissions in support of this application on 22 December 2014. The Department provided submissions in support of its decision on 2 April 2015, details of which were provided to the applicant. The applicant and the Department then made further submissions. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting my review, I have had regard to the submissions of the applicant, the submissions of the Department, and to the correspondence mentioned above. I have also had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the review

The scope of this review is concerned solely with the question of whether the Department was justified in deciding that further records are exempt from release under the provisions of section 10(1)(a) of the FOI Act. In relation to 31.13(e)(xix), it should be noted that refusing records on the basis that they had already been provided is not a basis for refusal recognised by the 1997 and 2003 FOI Acts.

Analysis and Findings

At the outset, it is relevant to note a number of preliminary matters. Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. It has been recognised that a review under section 34 of the FOI Act is de novo which means that it is based on the circumstances and the law at the time of the decision. This view of the Commissioner's role has been endorsed by the High Court in the judgment of Mr. Justice O'Caoimh in Minister for Education and Science v Information Commissioner [2001] IEHC 116.

Section 10(1)(a)
Section 10(1)(a) of the Act provides that a head may refuse to grant a request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The FOI Act confers a right of access, in certain circumstances, to records held by public bodies. If a request is made in the form of a question, public bodies will generally attempt to identify records which contain answers to the questions asked. The Act does not provide for a right of access to records which ought to exist, nor does it confer a general right of access to information. Furthermore, it does not require a public body to create records. If information required by an individual is not contained in a record, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the required information.

In cases where an applicant claims that relevant records are held by a public body which have not been released, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means the Commissioner must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website at www.oic.ie).

Applicant's Submissions
In his submissions, the applicant argued that the Department has statutory duties to ensure that proper records are kept so that they will be able to trace bovine production from farm to plate, and records showing this should be available. The applicant submitted that the Department should have examined the records of the party who supplied the applicant with the feed to see whether the supplier complied with his statutory duties. He argued that the Department should have records of where the party that supplied the applicant obtained the feed. The applicant submitted that the Department has not supplied him with sufficient information as to who took samples of the foodstuff supplied to the applicant, where they took the samples from, the exact location, the chain of delivery, custody and charge of same since the moment they were taken to the date they were delivered to the laboratory. In further submissions, the applicant argued that the key question is whether the Department went back to the supplier of the food and found out who supplied the supplier with the vegetables especially the sauce/bean which the applicant says his Veterinary Surgeon identified as the most likely source of the problem leading to the death of his cattle.

Department's Submissions
The applicant's request under 31.11(xviii) was for the Department to state how it had complied with its statutory duties. The Department submitted that there are numerous requirements placed on competent authorities to ensure that animal feed is safe and fit for purpose. There is legislation governing feed hygiene, inspections, marketing and labelling, contaminants, animal health, diseases, medicated feed, feed additives, genetically modified feed, methods of sampling and contaminants in foodstuffs. The Department submitted that it operates within the confines of this legislation, and most if not all of its work is underpinned by a legislative foundation. The Department submitted however that it does not have any records in this case that explicitly show the various steps it took in the applicant's case to comply with any or all EU and domestic feed legislation. The Department therefore submitted that section 10(1)(a) of the Act applied to the applicants request under 31.11(xviii) as no such records exist.
The applicant's request under 31.13(e)(xix) was for the Department to confirm whether or not it had carried out any inspections, audits, sampling, analysis and traceability from the original supplier of the vegetable feedstuff to the party which had supplied the applicant. The Department submitted that in response to the applicant's original request for records (FOI/11/096), the Department released a series of laboratory sample results including samples from the original supplier of the vegetable feedstuff. The Department stated that in terms of the application at hand it was taken that the applicant was seeking additional records to those already released and thus the Department sought to rely on Section 10(1)(a) as no additional records exist. The Department provided this Office with a copy of the laboratory sample results from the original supplier which was released to the applicant under FOI/11/096 and again provided to the applicant at internal review stage in this case. The Department confirmed that this is the only record which it holds which is relevant to the applicant's request under 31.13(e)(xix).

I find that the Department has justified its position that no records exist in relation to the applicant's requests under 31.11(xviii) and that no further records exist in relation to the applicant's requests under 31.13(e)(xix). Notwithstanding these findings, I have also considered whether the Department has described reasonable searches for any records that might exist and which have not been found. In response to questions from this Office about the searches conducted within the Department to ensure all records have been identified, the Department stated that when it was notified of the incident of cattle deaths on the applicant's farm, a separate case file was created. This file consolidated all documentation into a single source. This file contains all relevant documentation pertaining to this case and includes copies of emails, correspondence, solicitor's letters, briefing notes etc. The Department also provided the following details of the searches it carried to locate records

Original request:

• Examination of Feed Business Operator file;
• Examination of Case File;
• Compilation of relevant documentation;
• Considered responses prepared in relation to each question raised, particularly in light of records/information previously disclosed;
• Relevant files were then copied and the copy was sent to applicant's Solicitors, along with a schedule listing each record on file.

Appeal of Decision:

• Re-examination of Feed Business Operator file;
• Re-examination of Case File;
• Filing cabinets were again searched for any additional files/documents;
• The documents on files were checked against the schedule of documents sent to
• Applicant's Solicitors to ensure that no documents had been omitted;
• As the Case File contained copies of relevant emails related to the matter, it was deemed satisfactory in terms of a further search of saved and deleted emails by officers connected to the case;
• Further considered responses were made to FOI Appeal along with a detailed explanation of the Department's position on the case.
• Having reviewed the steps taken by the Department to locate the records and its responses to this Office's queries, I am satisfied that it has taken all reasonable steps to locate any further such records that might exist. I find that the Department has justified its refusal of those records, effectively requested at parts 31.11(xviii)and 31.13(e)(xix) of the applicant's request, under section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department that section 10(1)(a) applies to records sought at parts 31.11(xviii) and 31.13(e)(xix) of the request of 20 April 2012.

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. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator