Case Number: 160513

Whether the Department was justified in refusing access to various records concerning the impounding of horses, in early 2016, in a particular area

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 6 September 2016, the applicant made an FOI request to the Department for all files relating to the impounding of horses in a named location, on foot of an operation that he said was carried out earlier in the year, involving the Department, Kilkenny County Council and An Garda Síochána (the Gardaí). He also sought "all subsequent inter-agency/departmental correspondence re same. As a priority to include all Vet reports since the impounding of these horses."

The Department did not issue its decision on the request within the timeframe specified in the Act and, thus, effectively refused to grant access to the requested records.

The applicant sought an internal review of this effective refusal on 26 October 2016. On 17 November 2016, the Department issued its internal review decision. It said it was refusing access to the records under section 32(1)(a)(i) (which is one of the exemptions concerned with law enforcement and public safety) and section 37(1) (the exemption for personal information about a party or parties other than the person seeking the records).

On 20 November 2016, the applicant sought a review by this Office of the Department's decision.

During the review, the Department indicated that it was willing to partially release record 18, subject to the redaction of certain details under section 37. It also sought to invoke additional exemptions in relation to some of the withheld records.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Department, and the applicant. I have had regard also to the withheld records and to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Department has justified its refusal to release the relevant records (23 in total). It cannot examine other issues, including the Department's handling of the applicant's FOI request.

Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request 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.

Section 42(f)
Section 42(f) provides that the FOI Act does not apply to a record held or created by, in particular, the Attorney General or the Office of the Attorney General, other than a record relating to general administration. It is not subject to any public interest test.

I am satisfied that record 12 is an email to the Department from the Office of the Attorney General, giving legal advice. It is not a record relating to the general administration of that Office. I find that record 12 is, further to section 42(f), not subject to the FOI Act.

Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record.

"Personal information" is defined at section 2 of the FOI Act as

"information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential" ...

Section 2 goes on to list 14 examples of personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. One such example is "(xiii) information relating to the property of the individual ...". A further example is "(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual".

The applicant does not own the horses that were impounded or the land from which they were seized.

I am constrained in the description I can give of the details that the Department has withheld under section 37. The applicant says that the Department's application of section 37 "has no merit" and is "nonsense". He did not explain the basis for his view. However, the applicant is incorrect if he believes that section 37 has been relied on simply because the records contain information about impounded horses. I note that by linking the information that he seeks to a specific incident and location, the likelihood that certain of the records' content could be linked to identifiable individual(s) is greater than it might be in other circumstances. Having regard to the withheld records, the Department's submission, and the provisions of section 2 of the FOI Act, I consider the following to contain personal information about parties other than the applicant (including information about the property of and alleged commission of offences by such parties):

Records: 1 (references to specific geographic locations); 2; 3; 4; 5; 6 (references to specific geographic locations and all details of horses seized); 7 (all except text of notice subject to redaction of all details of horses seized); 8; 9; 10; 11 (reference to a specific geographic location, email of 23 February 2016 at 12.03, one sentence in email of 23 February immediately after a bullet pointed list, and all details of horses seized); 13; 14; 15; 16; 17; 19; 20; 21; 22; and 23.

I find the above to be exempt under section 37(1) of the FOI Act.

I have also considered if those records I have found to be fully exempt could be partially released. However, the findings I will make below on the application of section 31(1)(a) to some of the above records would make such an exercise meaningless. Having considered the other records I have found to be fully exempt under section 37, I do not consider it in keeping with section 18 to direct the release of any brief excerpts that might not in their own right be exempt. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). It is also relevant that the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.

The Department considers it appropriate to release most of record 18. However, apart from the details that the Department considers should be withheld from this record under section 37(1), there are other details in it that I consider to amount to personal information about parties other than the applicant. I find that the email dated 25 April 2016 to be exempt in full under section 37(1) of the FOI Act, as are all references to the name and job title of a third party who is not a public servant. However, I do not find the various references in record 18 to that person's place of work, in the absence of the individual's name and job title, to amount to personal information in their own right. I direct the Department to release record 18 in line with these findings.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply.

Having examined the withheld details, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 37(5)(a) - The Public Interest

The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 IR 729, [2011] IESC 26) (the Rotunda case), indicated that I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

The applicant says that the public is entitled to "inquire as to the nature of such an action and crucially to know the health of these horses at the time of their impounding, and their subsequent health with reference to vet reports". He also refers to the need to disclose the decision making behind such drastic action, whether in relation to animal welfare, the role of state agencies in such matters and the manner in which the State uses its immense power." These essentially equate to there being a public interest in establishing how the Department carried out its various functions in relation to the seized horses and in ensuring that it can be held to account if necessary.

On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Furthermore, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

When considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I accept that release of the details concerned would enhance the public interest in openness and accountability regarding the Department's various actions relating to the seizure of the horses concerned. However, this would, to a large extent, involve impinging on the privacy rights of parties other than the applicant. I find that the weight of the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.

Section 31(1)(a) - Legal Professional Privilege
The Department argues that all of the withheld records, except for records 1 and 18, attract legal professional privilege. Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). Section 31(1)(a) does not require the consideration of the public interest.

LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional 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 (litigation privilege).

Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

Litigation Privilege
In considering litigation privilege, the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 (the ESB case) is relevant. Ms Justice Finlay Geoghegan said that the relevant document must have been created when litigation is apprehended or threatened. She said that the document must have been created for the dominant purpose of the apprehended or threatened litigation. It is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation, and that the onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to obtain legal advice or to enable his solicitor prosecute or defend an action. Arising from the judgment in the ESB case, it also appears that, unlike legal advice privilege, litigation privilege does not automatically continue beyond the final determination of the litigation in which it originally applied or closely related litigation.

Analysis
The Department's submission in relation to litigation privilege says that the papers "clearly indicate that this is a current ongoing legal case concerning non compliance with equine identification and non compliance with equine premises registrations." In relation to both limbs of LPP, it says that "[e]xamination of the documents (other than doc no 1 and 18) clearly indicate that they are legal communications between solicitors for one party ... and the State Solicitor."

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. I can go no further than to say that I am satisfied that an appeal was threatened, and taken, very shortly after the seizure of the horses. Furthermore, I accept the Department's position that the appeal has yet to be heard. In the circumstances, I consider it possible for litigation privilege to apply to the records.

I accept that any record that, on its face, appears to have been created with the dominant purpose of preparation for litigation, attracts litigation privilege in the circumstances of this case. Having regard to details in record 17, I accept that record 19 was created with such a dominant purpose. I also accept that the dominant purpose test has been met regarding the communications between the Department and the third party that took the litigation, in relation to that litigation, which I also consider to be confidential vis a vis any other party. Records 3, 4, 5, 9, 10, 13, 14, 15, 16, 17, 20, 21, 22, and 23 are such records, which I find to be exempt under section 31(1)(a). I have found all of these records to be exempt under section 37, for reasons set out above.

Records 6, 7, and 11 relate to the ongoing litigation. However, they also appear to me to reflect actions and events that one could reasonably expect when horses are seized even if no litigation takes place. In other words, they appear to have more than one purpose. Having regard to the ESB case, it seems to me that the Department must, in such circumstances, explain why the dominant purpose of their creation was preparation for litigation. It has not done so. Neither do I have any reason to consider these records to be confidential communications made between the Department and its professional legal adviser for the purpose of obtaining and/or giving legal advice or a continuum of correspondence resulting from an original request for advice.

In the circumstances, I have no reason to find the remainder of records 6, 7 and 11 to attract litigation or legal advice privilege. I do not find them to be exempt under section 31(1)(a).

Section 32(1)(a)(i)
The Department considers this provision to be applicable to all of the records except for records 1 and 18. Given my findings on sections 31(1)(a) and 37(1) in relation to those records, I need only consider the application of this provision to the remainder of records 6, 7 and 11.

Section 32(1)(a) is a discretionary exemption that may be applied to a record if, in the opinion of the decision maker, its release could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid.

The Department says that the records relate to the prevention, detection or investigation of offences and the apprehension or prosecution of offenders, and therefore concern law enforcement, public and personal safety, the security of communication systems between the Department and the Gardaí, and the security of personnel and property of the Pound Operators. It also says that release would impair the fairness of criminal and/or civil proceedings, and that the records attract legal professional privilege. Such assertions are not adequate reasons for me to affirm the refusal of any record under section 32(1)(a)(i).

The Department also says is that if it is perceived that information given to assist detection may be released, "there will be an adverse impact and less information will be forthcoming". Although not at all clear, those concerns seem to be in relation to record 2, which I have found to be exempt under section 37 in any event. Otherwise, it does not identify the parties to which it refers, or the information so provided. Neither does it explain how release of the information concerned, whether contained in record 2 or other records, could cause the relevant parties to be less forthcoming. Nor does it explain why I should accept that its expectation of this outcome is a reasonable one.

The Department also refers to information that, if released, could impact upon any civil case that other parties may take. While this argument again appears to largely concern record 2, the Department does not explain how this outcome could reasonably be expected to result from the release of that record (or other records, if this is its position, which again is not clear). Neither does it explain how such an outcome is relevant to my consideration of section 32(1)(a)(i) in any event.

I find that the Department's submission does not give me any basis on which to affirm its refusal of the remainder of records 6, 7, and 11 under section 32(1)(a)(i).

Section 30(1)(a) - Prejudice the Effectiveness of Investigations/Procedures for Investigations

Section 30(1)(a) provides that an FOI request may be refused if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

The Department has relied on this provision in relation to record 1. I need only consider those details in record 1 that I have not found to be exempt under section 37.

Record 1 is, I note, the only record that concerns events leading up to the seizure of the horses. The Department maintains that release of this record would impact on its investigations, inquiries and audits into violations of animal welfare law, as well as investigative methods. It says that the record contains confidential Garda operational detail, and shows how the Gardaí carry out their business in some instances. It refers to a particular sentence in which a Garda emphasises that the details concerned are to be treated confidentially. The Department also says that the record contains information provided by the Department's Veterinary Inspector. It says that release of the record will allow greater opportunity for offenders to circumvent animal welfare law. It says that it is reasonable to expect that those who neglect animal welfare laws, and fail to comply with equine identification, could use the information in record 1 to avoid detection of their own offences or reduce the likelihood of being apprehended by law enforcement or regulatory bodies.

I accept that record 1 concerns contacts between the Department and the Gardaí in relation to a now concluded operation. However, the details are general. While I accept that details of the operation were confidential at the time they were shared, no argument has been made as to why wider release of the details now could have any impact on how the Gardaí carry out their functions generally. Neither does the Department explain how the other outcomes it describes could result from the release of the rest of record 1. I am not satisfied that it has justified its refusal to grant access to the remainder of record 1 under section 30(1)(a).

Section 30(1)(b) - Functions Relating to Management (including Industrial Relations)
Section 31(1)(b) - Contempt of Court
Section 32(1)(a)(iv) - Fairness of proceedings in a court
Section 32(1)(b) endanger life and safety of any person
Section 32(1)(a)(x) - security of communication systems, whether internal or external, of the Garda Síochána

The Department's submissions in relation to sections 31(1)(a) and 32(1)(a)(i) also imply outcomes that reflect other provisions of the FOI Act.

In relation to record 1 in particular, it seems to be suggesting that release of the record might disclose certain matters which might lead to industrial relations difficulties with an adverse effect on inquiries, audits and investigations. This would appear to be a reference to section 30(1)(b) of the FOI Act, which may be applied to a record that if released could, in the opinion of the decision maker, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).

In relation to the other records (other than record 18), it claims that it would be a contempt of Court to release the records at issue (the mandatory section 31(1)(b) refers). It says that it may be prejudicial to the parties to the ongoing litigation to release the records and, in relation to record 2 in particular, to the fairness of proceedings in any civil case that other parties may take. Generally speaking, section 32(1)(a)(iv) may be applied to records that, if released, could reasonably be expected to prejudice or impair the fairness of proceedings in a court. The Department says that the records "concern law enforcement, public and personal safety". Section 32(1)(b) may be applied to records that, if released, could reasonably be expected to endanger the life or safety of any person. It says that the records concern the security of certain communication systems, namely communication between the Department and the Gardaí. Section 32(1)(a)(x) may be applied to records that, if released, could reasonably be expected to prejudice or impair the security of any system of communications, whether internal or external, of the Gardaí in particular. Finally, it says that the records concern the security of personnel and property of the Pound Operators. Section 32(1)(a)(ix) may be applied to records that, if released, could reasonably be expected to prejudice or impair the security of any building or other structure.

The Department has not explicitly relied on the above provisions, and in any event has merely made assertions as to the outcomes summarised above. It has not explained how such outcomes could arise as a result of release of the withheld information. I do not consider the Department to have justified any claim for exemption it may be making on such grounds.

Accordingly, I have no reason to affirm the Department's refusal to grant access to the remainder of records 1, 6, 7 or 11 and I find that the details concerned should be released.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's refusal of the applicant's request. I affirm its refusal to grant access to the majority of the records, under sections 31(1)(a), 37(1) and 42(f). I annul its refusal of access to the remaining records and direct their release as follows:

• Record 1 - Release subject to redaction of specific geographic locations;
• Record 6 - Release subject to redaction of references to specific geographic locations and all details of horses seized;
• Record 7 - Release text of notice subject to redaction of all details of horses seized;
• Record 11 - Release subject to redaction of references to a specific geographic location, the email of 23 February 2016 at 12.03, one sentence immediately after a bullet pointed list in the email of 23 February at 11.59, and all details of horses seized;
• Record 18 - Release subject to redaction of email dated 25 April 2016 in full; and all references in record 18 to the name and job title of a third party who is not a public servant.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator