Case Number: 170036

Whether the Council was justified in its decision to redact certain identifying information from records relating to dog breeding establishments under various provisions of the FOI Act

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

Background

On 26 September 2016, the applicant sought access to a broad and detailed range of information relating generally to dog breeding establishments (DBEs). The Council granted partial access to the records it identified as coming within the scope of the applicant's request. On 12 December 2016, the applicant sought an internal review of the Council's decision to redact names and addresses of the DBEs and the names of DBE owners and vets.

On 6 January 2017, the Council affirmed the original decision in so far as it related to the redaction of the names and addresses of the DBEs and the names of DBE owners and vets. On 23 January 2017 the applicant sought a review by this Office of the Council's decision

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Council and to the correspondence between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the records at issue.

Scope of the Review

While the applicant initially sought an extensive range of information, she confined her application for internal review to the redactions of the names and addresses of the DBEs and the names of DBE owners and vets from the records released. Accordingly, this review is concerned solely with whether or not the Council was justified in deciding to redact that information.

Preliminary Matters

It is important to note that a review by the Commissioner under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision.

Analysis and Findings

The Council initially relied upon sections 36 and 37 of the FOI Act to justify the redaction of the information at issue. During the course of the review, it also sought to rely on section 32. I note that the applicant was offered an opportunity to comment on the applicability of that section and that she did so. As I consider section 32 to be of most relevance, I will deal with its potential application in respect of the information at issue in the first instance.

Section 32(1)(b) is a discretionary exemption that allows a public body to refuse to grant a request if it considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person. In interpreting the words "could reasonably be expected to", this Office considers that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. As such, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

The exemption is not commonly used and it should not be applied without careful consideration having been given to whether the expectation of endangerment is a reasonable one in all the circumstances. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such physical harm will definitely occur, but the FOI body must show that there is a reasonable expectation of such harm arising.

While the Council did not explicitly rely on section 32 at internal review stage, it did, however, express a concern in relation to the release of the information at issue. It noted that particular premises may be targeted for harassment and that unlawful actions may be targeted at certain premises. In a subsequent submission to this Office the Council argued that section 32(1)(b) of the FOI Act should apply on the basis of the similarity between this review and my review in Case 160437 (Maeve Sheehan of the Sunday Independent and Department of Agriculture, Food and the Marine). In that case, I considered whether the Department of Agriculture, Food and the Marine was justified in redacting certain identifying information from records relating to the inspection of DBEs. The Department had stated that "dog breeding establishments (so called puppy farms) are the subject of significant opposition and campaigning from some welfare groups" and that "... some animal rights groups may consider it legitimate to target any named/identified puppy farms with direct action/protests". In my decision, I stated the following:

"Commercial dog breeding has generated considerable controversy and there have been protests against individuals involved following negative media coverage. I consider that a small minority of animal welfare activists have engaged in violent and abusive behaviour in the past, and that the Department's expectation of endangerment to the safety of individuals connected with the dog breeding establishments and the inspection of same by the release of the information at issue was reasonable."

In her correspondence with this Office, the applicant put forward a number of arguments for suggesting that the Council was not justified in redacting the records on the basis of section 32(1)(b). She asserted that no specific details of threats have been presented and queried why, if there was such a threat, it was not identified at original decision and internal review stages. She suggested that the position relating to any threat cannot be reasonably held as details of veterinary inspectors and DBEs are already in the public domain.

I addressed similar issues in Case 160546 (Ms. S and Cork County Council) and Case 170043 (Ms. S and the Department of Agriculture, Food and the Marine). Regarding the information that is already in the public domain, while accepting that the information outlined was publicly available, I noted that the release of the unredacted records would disclose more than that already available. I found that release would link the individuals concerned and the specific DBEs to the actual contents of the inspection reports and improvement notices. The issue is not that release of the identities of Inspectors or of DBEs could give rise to the harms identified, but rather that release of the identities of the relevant staff and of the DBEs contained in the various reports could do so. In Case 160546 I noted that:

"It seems to me that there will be occasions where an inspection report or an improvement notice will contain adverse comments concerning the condition in which the dogs are kept that will be of concern to animal welfare activists. Given the considerable controversy surrounding commercial dog breeding, I find that the release of such reports in unredacted form could reasonably be expected to give rise to endangerment to the safety of one or more of the affected parties. I also accept that there will be occasions where inspection reports contain nothing but positive commentary. However, the difficulty with a local authority releasing such reports is that when a local authority decides not to release a report in full, inferences are likely to be drawn as to the adverse nature of such reports. In conclusion, therefore, I find that the Council was justified in deciding to redact the identifying information relating both to its Inspectors and to the DBEs themselves from the Inspection reports and the improvement notices on the ground that the release of same could reasonably be expected to endanger the safety of its Inspectors and of the staff/owners of the DBEs."

In relation to the applicant's comments concerning the Council's failure to present specific details of threats, I have already explained above that the Council is not required to show that the harm identified will definitely occur. Rather, it must satisfy me that its expectation of the harm arising by the release of the information at issue is reasonable.

The applicant also argued that people are entitled to protest and if people choose to act violently that is a criminal matter and one which would be dealt with by the Gardaí. While that may well be the case, it does not alter the fact that the FOI Act specifically allows public bodies to refuse access to records they consider the release of which could reasonably be expected to endanger the life or safety of any person. In line with recent previous cases based on markedly similar circumstances, I find, as a matter of fact, that the expectation of danger is reasonable and therefore that section 32(1)(b) applies to the redacted information sought.

Section 32(3) also contains a limited public interest balancing test. The applicant has made a number of points that are, in effect, public interest factors in favour of releasing the records in full. However, the public interest test in section 32 is different from the general public interest balancing test that exists in a number of other exemptions in the FOI Act. In essence, under section 32(3), the public interest balancing test must be considered only in certain circumstances, namely

• if the record discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law, or
• if the record contains information concerning the performance of the functions of an FOI body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or
• if the record contains information concerning the merits or otherwise or the success or otherwise of any programme, scheme or policy of an FOI body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by an FOI body.

No argument has been made that any of the above circumstances arise in this case, nor do I consider that they arise. I find, therefore, that section 32(3) does not serve to disapply section 32(1)(b) in this case.

Having found that section 32(1)(b) applies to the names and addresses of the DBEs and the names of DBE owners and vets, I do not propose to consider the application of the additional sections relied on in relation to that information.

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Council to redact the names and addresses of the DBEs and the names of DBE owners and vets from the records released, under section 32(1)(b) of the FOI Act.

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 no later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator