Case Number: 170029

Whether the VCI has justified its refusal to release an expert's reports and related records, concerning its investigation of the applicant's complaint against two veterinary surgeons ("the registrants") about their treatment of her pet

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 16 March 2016, the applicant made an FOI request to the VCI for various records concerning a complaint she had made to the VCI about the registrants' treatment of her deceased pet. The VCI's decision of 18 April 2016 refused to grant access to 59 records, which it listed on a schedule, citing various provisions of the FOI Act. It also referred in general terms to records it said attracted legal professional privilege and that were accordingly exempt under "section 31".

On 17 May 2016, the applicant sought an internal review of the VCI's refusal to release "the Expert declaration (Rec. no 32; Date of Record 17 November 2015) (the "Expert's Report")". The VCI's internal review decision of 8 July 2016 said it was refusing to grant access to the expert's reports and the expert's declaration, in which respect it referred generally to sections 29 and 30 of the FOI Act. The relevant provisions are, in fact, section 29(1) and, based on the wording of the internal review decision, section 30(1)(a) of the FOI Act. These are, respectively, provisions that may be applied to records relating to an FOI body's deliberative process, and to records whose release could reasonably be expected to prejudice the effectiveness of tests, examinations, etc carried out by or on behalf of an FOI body.

On 17 January 2017, the applicant sought a review by this Office of the VCI's decision on what she described as "the expert's report".

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above, and to correspondence between this Office, the VCI, and the applicant. I have also had regard to the records at issue, copies of which were provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.

Scope of the Review

On its face, the applicant's internal review application identified only one record. However, the Council's internal review decision considered the declaration and the expert's reports. It says that an expert's declaration usually forms part of an expert's report but sometimes is provided as a stand alone document. It also says that a declaration on its own is unlikely to be requested, and that it understood the internal review application to cover the expert's reports as well as the declaration. Given that the applicant's internal review application referred to record 32 as both the expert declaration and the expert's report(s), I consider the VCI to have interpreted the scope of that application properly.

The VCI has provided this Office with copies of the records it considered at internal review and not disputed this Office's understanding that they are records 29, 30, 31 and 32 as listed on its original schedule of records. Accordingly, this review is confined to whether or not the VCI has justified its refusal to grant access to records 29, 30, 31 and 32.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

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). I take 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 the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

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.

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.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Findings

Fitness to Practice (FtP) Inquiries & Veterinary Practice Act 2005

The VCI's submissions on sections 29(1), 30(1)(a) and 37(1) refer to its view that release of the records would be contrary to the Veterinary Practice Act 2005 and that there is no provision in the 2005 Act for the release of expert reports to complainants. By way of context, it says that:

FtP inquiries have two stages. The first ("investigation") stage considers whether the case needs to be referred to the second ("hearing"). Both stages are conducted in private but that at hearing stage an application can be made to have the hearing held in public. To date, all inquiries before the FtP Committee have been held in private. When there is a finding against a registrant, the VCI publishes certain particulars in its Annual Report, as provided for by section 89 of the Veterinary Practice Act 2005 (the 2005 Act). However, the 2005 Act does not provide for the publication of reports, including expert reports, and section 89 only expressly permits the publication of limited particulars in relation to inquiries where sanctions are imposed. The VCI must act within its governing legislation.

In this case, the complaint was referred to the "hearing" stage, as part of which an expert report was obtained into the conduct of both registrants the subject of the complaint. The FtP Committee subsequently struck out the complaint on the basis that, essentially, there was insufficient evidence that the conduct complained about fell short of reasonable requirements. The VCI says that, accordingly, the matter "did not progress to full Inquiry."

It seems to me that the plain and ordinary meaning of section 89 of the FOI Act is that the VCI is required to publish certain details in its Annual Report about changes to a particular register, about warnings or censures issued, and about certain matters concerning contributions payable by registrants. However, section 89 does not place a prohibition on the release of other material, including expert reports. I do not accept the VCI's argument that disclosure of the expert's reports is not permitted by the 2005 Act or would be contrary to that Act.

Personal Information

It is the VCI's position that the records contain personal information about third parties and are exempt under section 37(1) of the FOI Act. While its internal review decision did not specifically rely on section 37(1), it said that the registrants, whom it had consulted, considered the records to contain personal information. In any event, I am obliged to consider section 37(1) where I consider a record to contain personal information.

However, I must reject the VCI's view that I should read section 37 in this case together with other exemptions it has relied on, particularly section 30. Each exemption in the FOI Act is distinct and independent, and must be considered in its own right. There is nothing in the Act which suggests that section 37 is subject to the provisions of section 30.

I will also address the VCI's argument that the records comprise personal data as defined by the Data Protection Acts 1998 to 2003 and that it is prohibited, under the Acts, from disclosing the report. Section 1(5)(a) of the Data Protection Act 1988 (as amended) provides that "[a] right conferred by this Act shall not prejudice the exercise of a right conferred by the Freedom of Information Act 1997." Accordingly, I find that the VCI is not entitled to refuse to grant access to any parts of the record at issue solely on the ground that release of the information at issue is prohibited by the Data Protection Act. On a related note, the VCI argues that release of the personal information would breach Article 8 of the European Convention on Human Rights. However, it seems to me that the strong protection afforded to privacy rights under FOI is consistent with Article 8.

I note that in her internal review application, the applicant suggests the redaction of "all personal and identifying information e.g. the registrant's names and the identity of the expert". I have proceeded on the basis that I need not consider the names of the parties concerned. I should also make it clear that the fact that the applicant may have obtained certain information in the course of the VCI's examination of her complaint does not of itself entitle her to that information, or other related information, under FOI.

Section 37 - Expert Reports

Sections 37(1) &(7)
Section 37(1), subject to other provisions of section 37, is a mandatory exemption. It requires the refusal of access to a record containing the personal information of a party other than the person(s) seeking the record. Section 37(7), subject to other provisions of section 37, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties (joint personal information).

"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 also 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. The examples include "(iii) information relating to the employment or employment history of the individual", and "(xiv) the views or opinions of another person about the individual".

Application of Sections 37(1) and (7)
The applicant argues that the expert reports do not relate to the private lives of the registrants but only to the conduct of their professional practice and their treatment of her deceased pet. She says the reports are not their private documents. She also says that the names and practices of vets are a matter of public record, which I take to mean that it is a matter of public record that one is a registrant.

The VCI argues that the registrants have a reasonable expectation that details of the complaint, including the fact that they were the subject of a complaint, would not be disclosed to the public. It says that they would also have a reasonable expectation that any investigation or hearing, and information given, would be confidential, particularly where the complaint was struck out.

Section 25(3) means that the description I can give of the expert reports is limited. In summary, they contain details about the expert, in terms of her education and work history. The information about her is relatively detailed and, even if her name and address are redacted from the records, I consider that she would be identifiable. I am satisfied that these details comprise personal information about the expert (details of one's educational history being another example of personal information listed in section 2).

The reports also detail the applicant's complaint about the registrants' treatment of her pet, and the expert's analysis and conclusions on that treatment, in terms of both direct and indirect references to the registrants. I consider such details about the registrants in the reports to fall into the various examples of personal information referred to above. The fact that the reports are concerned with the registrant's professional lives, rather than say their home lives, is not relevant in applying the definition.

Although I need not go further, I also accept that, in the circumstances of this case, the information about the registrants in the reports meets both elements of the definition of personal information. The fact that a complaint has been made about a registrant, or the details of the complaint and any ensuing inquiry, is not something that would ordinarily be in the public domain. I accept that this information would, in the ordinary course of events, be known only to the individual registrant or members of the family, or friends, of the registrant. Equally, I accept that such details would be held by the FOI body on the understanding that it would be treated by it as confidential.

While the reports also concern the applicant and her pet, this information is inextricably linked to the personal information of the registrants and the expert. I accept that the reports comprise joint personal information and I find them to be exempt under sections 37(1) and/or 37(7) of the FOI Act.

I do not consider it appropriate or feasible to provide the applicant with a copy of the reports with all personal information redacted. Having regard to section 18 as referred to earlier, I do not consider such redaction to be practicable given the nature and extent of the detail throughout the reports. Furthermore, redaction of the third party names the applicant has excluded would still leave considerable amounts of their personal information in the records. For instance, the reports contain significant amounts of contextual information, which I am satisfied would enable identification of the registrants. Removing all such third party personal information would render, in my view, the ensuing copy of the report misleading.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemptions at sections 37(1) and/or (7) do not apply.

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.

In particular, both registrants, in fact, object to the release of any personal information about them (section 37(2)(b) refers). Furthermore, given that the VCI publishes no details whatsoever when no adverse findings are made against a registrant, this is not a case where sections 37(2)(c) or (d) might be relevant.

Section 37(5)
Section 37(5) provides that a record, which is otherwise exempt under sections 37(1) and/or (7), 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; neither has the applicant made any argument that it would.

Section 37(5)(a) - The Public Interest
On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

The applicant says that, "[a]s a member of the public, [she believes] that the expert's report into the conduct of veterinary professionals should be released to [her]". She also says that she is seeking transparency from the VCI as to its basis for making the determination it made in the case of her complaint.

The applicant argues, essentially, that there is a public interest in ensuring that the VCI is open about, and can be held accountable for, how it carries out its functions. I agree. This is a public interest recognised by the FOI Act itself. Release of the reports would further this public interest to a limited extent, in that they would disclose at least some of what the VCI considered before it struck out the applicant's complaint. However, release would not disclose anything about the VCI's actual decision making process itself or how it carried out its functions in this case. Furthermore, I do not believe that this public interest extends to ensuring transparency regarding the registrants' actions, which is the focus of the reports concerned. FOI is concerned with the activities of public bodies generally. It is not a means by which information about the activities of private individuals, whether working in a professional capacity or not, is intended to be made known to the public at large.

The FOI Act also recognises the public interest in the protection of the right to privacy. This is evident both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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.

On balance, I consider that the weight of the public interest in granting access to the expert reports is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld. I find that section 37(5)(a) does not apply.

Each application for review made to this Office is treated on its own merits. Hence, any one decision does not necessarily create any precedent for other cases that appear similar. Nonetheless, I will distinguish this case from a recent decision issued by this Office in Case No 160544. The request in that case referred to an inquiry mentioned in the VCI's 2010 Annual Report. The relevant excerpt described the complaint the subject of that inquiry and the findings of the FtP Committee. The request sought the decision (report) of the FtP Committee in relation to the inquiry concerned. The request in the current review case seeks a different kind of record, i.e. expert reports submitted to the Committee. The background to the requests also differs i.e. one is a request made on foot of an inquiry mentioned in an Annual Report that does not name the relevant registrant; the other is a request made following a complaint by the applicant about two specific registrants. The decision in Case No 160544 directed the release of the record subject to the redaction of personal information. As explained above, I have not found it practicable to direct that course of action in this case.

Section 37 - Expert Declaration and Cover Email
The two remaining records comprise what appears to me to be a standard declaration that any expert would be required to sign when providing an expert opinion in an FtP case (record 32), and a brief, general, email to which the declaration was attached (record 31).

I am not considering the expert's name for reasons already given. I consider that the expert's signature and email address to comprise personal information about the expert. I also consider that the subject matter line of the email contains information that would identify the registrants. For the reasons set out in respect of the expert reports, I find this information to be exempt under section 37(1) of the FOI Act, and that none of the exceptions to section 37(1) (including the public interest balancing test at section 37(5)(a)) require its release.

I do not consider or find the remainder of these records to be exempt under section 37. I will, therefore, go on to consider the other exemptions relied on by the VCI in this case in relation to the remaining details concerned.

Sections 29(1) and 30(1)(a) of the FOI Act - Remainder of Expert Declaration and Cover Email

Section 29(1)(a)
Section 29(1) provides that an FOI request may be refused (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations considered for the purpose of these processes), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest.

These two requirements are independent, and FOI bodies must show to this Office's satisfaction that both section 29(1)(a) and section 29(1)(b) have been met. In particular, the public interest test contained in section 29(1)(b) requires the FOI body to be of the opinion that releasing the records would be contrary to, or against, the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release.

Section 30(1)(a)
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.

Analysis
The VCI's arguments regarding the application of section 29(1) and 30(1)(a) in this case are concerned with the impact of release of the expert reports, and/or comments or submissions made by registrants, on its procedures for dealing with complaints of the sort made by the applicant. However, the remaining information is not of such a nature. As noted already, the declaration appears to be in a standard format, and the remainder of the email is general. The VCI did not point to any specific information in these two records about which it had particular concerns, or make any specific argument as to how release of such details could cause a specific harm to the any deliberative processes or on the inquiries it carries out.

I do not consider the VCI to have, as required by section 22(12)(b), justified its refusal of the remainder of these two records. I find neither section 29(1) nor 30(1)(a) to apply to the details concerned.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the VCI in this case. I affirm its decision to refuse to grant access to the expert reports. I also affirm its refusal to grant access to the expert's signature as contained in the expert's declaration, and the expert's email address in, and the subject line of, the cover email to the declaration.

I annul its decision to refuse to grant access to the remainder of both the expert's declaration and the cover email to the declaration. I direct that these records be released subject to the redaction of the name of the expert and the personal information in them as set out above.

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