Case Number: 170043

Whether the Department was justified in its decision to redact, under section 32(1)(b) of the FOI Act, information from records relating to the inspection of dog breeding establishments that would allow for the identification of the establishments, their staff, or the staff who carried out those inspections

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 October 2016, the applicant sought copies of all reports held by the Department relating to inspections of dog breeding establishments (DBEs) carried out since 2014, any internal documents that relate to the conditions of dog breeding establishments from 1 January to the date of her request, copies of all submissions made by certain third parties in relation to the Dog Breeding Establishment Act and Bill from 2004 to May 2016, and a copy of the register of interest for a named Department employee from 2012 to the date of her request.

The Department issued its decision in two parts in November 2016. It refused access to the register of interest and to the third party submissions sought on the ground that no such records exist or could be found. It apparently refused access to the inspection reports and other internal documents sought. The applicant sought an internal review of the decision to refuse access to the inspection reports and other internal documents. On 4 January 2017, the Department granted access to three records in full and partial access to 67 further records it identified as coming with the scope of the relevant parts of the applicant's request. On 26 January 2017, the applicant sought a review by this Office of the Department's decision to grant only partial access to the inspection records.

I have decided to conclude this review by way of a formal binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the Department and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue. In referring to the records, I have adopted the numbering system used by the Department when processing the request.

Scope of the Review

During the course of the review, the applicant stated that she was uncertain if she received all records as record 42 refers to two attached reports that she did not receive. Having examined the records, I note that the attachments referred to are records 43 and 44, copies of which were released with redactions. However, the copy of record 59 that was initially released to the applicant was, in fact, a copy of record 60. The Department subsequently released the correct copy of record 59.

This review is concerned solely with the question of whether the Department was justified in its decision to redact certain information from the 55 inspection report records released to the applicant on foot of her FOI request under sections 32 and 36 of the FOI Act.

Preliminary Matter

It is important to note at the outset 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 records at issue are reports of inspections of DBEs jointly carried out by Departmental veterinary inspectors and local authority veterinary inspectors. The redactions consist primarily of the names and identifying details of both the veterinary inspectors and the DBEs but a small amount of other information has also been redacted. The Department relied on sections 32 and 36 of the FOI Act to redact the records. As I consider section 32(1)(b) to be the most relevant exemption, I will deal with that in the first instance.

Section 32(1)(b)
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.

The Department argued that events involving adverse publicity associated with media coverage dealing with DBEs have highlighted the very real risks to the life or safety of all persons associated with DBEs. It stated that DBEs continue to be the subject of significant opposition and campaigning from some welfare groups. It noted that the majority of welfare groups are of course very responsible but argued that some animal rights groups may consider it legitimate to target any named/identified DBEs with direct action/protests. It argued that the release of the identities of the DBEs could reasonably be expected to endanger the safety of the individuals connected with the DBEs.

The Department further stated that some veterinary inspectors involved in official inspections of DBEs have been trolled and threatened on social media and that some officials have been subject to trolled attacks which have apparently being referred to An Garda Síochána. It stated that it has a duty of care to its employees and that to release the identities of the officials concerned could reasonably be expected to endanger their safety.

This Office has previously considered the application of this exemption to other similar records. In Case 160089 (Siobhan Maguire of The Sunday Times and the Health Products Regulatory Authority (the HPRA)), I considered whether the HPRA was justified in redacting certain inspection reports of premises using animals for scientific or educational purposes. Amongst other things, the HPRA sought to redact all information from the reports that might identify the various establishments and the individuals concerned, both the staff and owners of the establishments and the HPRA inspection staff. In my decision, I stated the following:

"While the vast majority of opponents of animal research are entirely peaceful, I am satisfied that there exists a small minority who are willing to use violence against those involved in such research. I am satisfied that previous examples of activists targeting the staff of organisations which are engaged in animal testing demonstrate that there is a continuing threat of abusive and violent behaviour posed by some activists...In my opinion, the disclosure of information revealing the location of the research institutions, and the identities of individuals involved in such research and engaged in inspections could reasonably be expected to endanger the life or safety of such individuals."

Subsequently, in Case 160437 (Maeve Sheehan of the Sunday Independent and Department of Agriculture, Food and the Marine), I considered whether the Department of Agriculture, Food and the Marine was justified in redacting certain identifying information from reports on inspections of DBEs held. In that case, the Department 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 found that similar considerations to those arising in Case 160089 applied. 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 Department was not justified in redacting the records at issue. Much of her argument is based on the fact that the identities of the Veterinary Inspectors are already publicly available, as are the identities of the owners of DBEs by virtue of the fact that the DBE Act requires each local authority to publish a register of DBEs situated in its functional area. Where a local authority receives an application to register a DBE the Act requires, subject to certain limited exceptions, the publication of the name and address of the applicant, the address of the DBE, the maximum number of bitches capable of being used for breeding that may be kept, and any conditions attaching to the registration.

While I accept that the information outlined is publicly available, the release of the unredacted records in this case would disclose more than that already available. It would link the individuals concerned and the specific DBEs to the actual contents of the inspection reports. The issue is not that the release of the identities of the Inspectors or of the DBEs could give rise to the harms identified, rather it is whether or not the release of the identities of the relevant staff and of the DBEs coupled with the information contained in the various reports could do so.

The applicant also argued that as there have been numerous peaceful protests, the assertion that release of the records in unredacted form would endanger the life or safety of any person cannot be reasonably held. As outlined above, it is not necessary, or indeed possible, to show that physical harm will definitely occur in order for section 32(1)(b) to apply. The section expressly allows an FOI body to refuse access to records where it considers that such access could reasonably be expected to endanger the life or safety of any person. The Department is therefore not required to show that the harm identified will definitely occur, rather, it must satisfy me that its expectations of the harm arising by the release of the information at issue is reasonable.

I fully accept the applicant's arguments that numerous peaceful protests have taken place. However, this does not mean that the Department's expectation of harm is unreasonable. The applicant's arguments have not persuaded me that I should change the approach I took in Case 160437 as outlined above. It seems to me that there will be occasions where the contents of inspection reports will be of concern to animal welfare activists. Given the considerable controversy surrounding commercial dog breeding, I am satisfied that the release of the identifying information contained in the reports at issue could reasonably be expected to give rise to endangerment to the safety of one or more of the affected parties. I find, therefore, that section 32(1)(b) applies to such information.

For the sake of clarity, I find that identifying information comprises the following:

1. Names, addresses, location details, phone numbers and email addresses of DBEs, veterinary inspectors and/or Department Officials.
2. Any reference to a relevant Council, County or local Society for Protection of Cruelty to Animals which would serve to identify the location of a DBE.
3. Registration, reference or licence numbers.
4. Names, addresses, or contact details of any DBE employees, personnel or veterinary practices.

Section 32(3) contains a limited public interest test where section 32(1) does not apply. It provides that in certain circumstances, section 32(1) does not apply where the body considers that the public interest would, on balance, be better served by granting the request. The circumstances are as follows:

• 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.

Among other things, the applicant argued that the reports contain information concerning the performance of the functions of the Department and of the various councils relating to the enforcement of law. I disagree. While a reader of the reports may well form a view as to the performance of the bodies concerned in relation to how they have carried out their inspection functions, the reports are not concerned with the performance of the bodies of their functions. Rather, they are concerned with the performance of the DBEs of their functions and activities. In my view, the provision is aimed at ensuring public bodies cannot rely on section 32(1) to refuse access to records that are concerned with how those bodies are carrying out their functions. I find that section 32(3) does not apply in this case. I find, therefore, that the Department was justified in refusing access to the identifying information contained in the reports at issue as outlined above under section 32(1)(b) of the Act.

As I have outlined above, a small amount of additional information, apart from identifying information, has been redacted from the records. Such information includes the address of the Department, the dates of various reports/emails, the dates of the various inspections, and report titles that contain no identifying information (see, for example, record 4). I find that section 32(1)(b) does not apply to this information. The Department also cited sections 32(1)(c), 36(1)(a) and 36(1)(b) as grounds for redacting the records at issue. As I have found that all identifying information was appropriately redacted under section 32(1)(b), I fail to see how the release of the non-identifying information could possibly give rise to the various harms identified in the remaining sections cited. As such I find that sections 32(1)(c), 36(1)(a) and 36(1)(b) do not apply. I therefore direct release of any information contained in the reports that is not captured by the identifying criteria described above.

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Department. While I affirm the Department's decision to redact of all identifying information contained in the inspection reports under section 32(1)(b) of the FOI Act, I direct the release of the miscellaneous non-identifying information as described 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 applicant 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.

Stephen Rafferty
Senior Investigator