Issue: Whether the VCI was justified in refusing access to records relating to an investigation carried out by inspectors under sections 29, 30, 31, and 42 of the FOI Act.  

8/01/2019

Background

On 16 April 2018, the applicant requested all records regarding an investigation carried out by inspectors who were instructed by the VCI.  On 25 June 2018, the VCI identified 12 records relevant to the applicant's request.  Access was granted in full to two records.  Access was refused in part or in full to the remaining 10 records on the basis of sections 42 (restriction of FOI Act), 37 (personal information), 29 (deliberative process), 30 (functions and negotiations of FOI bodies) and 31(1)(a) (legal professional privilege) of the FOI Act.  The applicant sought an internal review and the VCI affirmed the original decision on 17 July 2018.  The applicant subsequently applied to this Office for a review.  
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 VCI and the applicant as described above. I have also had regard to the correspondence between this Office and both the VCI and the applicant on the matter, and to the contents of the records at issue as well as to the provisions of the FOI Act. 

 

Scope of the Review

During the course of this review the VCI agreed to release one further record (record 4) and partially released record 8, which had initially been refused in full.  
This review is concerned with whether or not the VCI was justified in its decision to refuse access to: records 1 and 3 on the basis of section 42(m)(i), records 6, 7 and 8 on the basis of sections 29(1) and 30(1)(a), record 9 on the basis of section 29(1) and records 10, 11 and 12 on the basis of section 31(1)(a) of the FOI Act.  

Preliminary Issues

Before addressing the exemptions relied upon in this case I wish to make several preliminary points.  
Firstly, it is important to note that it is outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.  This review is not concerned with the performance by the VCI of its functions, save insofar as they relate to FOI, and no comment will be made on the manner in which it carries out its investigative functions.  The applicant has made several allegations in relation to the investigation that was carried out, however, I have no jurisdiction to address this.  My function is solely to determine whether or not exemptions have been appropriately applied by the VCI in this case.  In that regard, I would also highlight section 13(4) of the FOI Act which provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request. 

Further, 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 decisio

n 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. This places the onus on the VCI of satisfying this Office that its decision in respect of the record 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. 

Analysis and Findings

The records can be grouped together under the relevant exemptions claimed.  

Records 1 and 3

Section 42(m)(i)
Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession.  In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.
For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.  

First Requirement

The record at issue concerns a telephone log noting a call made to the VCI.  I am satisfied, having examined its contents, that its disclosure could reasonably be expected to reveal, or lead to the revelation of, the identity of the caller. I find, therefore, that the first requirement is met.

Second Requirement 

The second requirement is that the provider of information must have provided that information in confidence. In its submission to this Office, the VCI stated that the person who made such representations did so in the expectation that the information would remain confidential.  I am satisfied that the second requirement is met.  

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law.  The VCI states that the call related to an alleged breach of the Animal Remedies Regulations SI 786 of 2007 and the Veterinary Practice Act 2005.  I am satisfied that the third requirement is met.  
Having examined records 1 and 3, I am satisfied that the requirements of section 42(m)(i) have been met and that the VCI was justified in refusing access in full to record 1 and in part to record 3.  I therefore affirm this aspect of the VCI's decision.  

Records 6, 7 and 8 

Section 30 - functions and negotiations of FOI bodies
In addition to relying on section 29(1), which I will discuss below, the VCI relied on section 30(1)(a) in relation to records 6, 7 and 8.  
Section 30(1)(a) is a discretionary exemption that applies where the release of a record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the FOI body or the procedures or methods employed for the conduct of such tests etc.  It is a harm based provision and the onus is on the VCI to identify any potential harm that might arise from release and to consider the reasonableness that the harm will occur.  

I accept that records 6, 7 and 8 relate to an investigation carried out by the VCI.  The question for me is whether or not release of these records could reasonably be expected to prejudice the effectiveness of such investigations.
The harm identified by the VCI that may be caused by release of these records is that it will result in reduced co-operation with the investigative process.  It notes that investigations operate on an almost entirely voluntary basis and that the reason for this level of co-operation is the expectation of confidentiality in the process.  It also argued that evidence is more forthcoming where confidentiality is guaranteed and those the subject of the investigation are less likely to insist on their right not to self-incriminate.  It states that a reduction in co-operation will result in increased time and cost and constitute an impairment to the VCI's investigative process.  

It also argued that, unlike other regulatory professional bodies, absolute privilege does not apply in respect of any potential defamation and civil proceedings arising from proceedings.  It notes that section 85 of the Veterinary Practice Act, as amended, provides limited legal privilege in respect of proceedings "published or made available by virtue of this Act" and that privilege does not, therefore, apply to any publication outside of those provided for in sections 79 and 89 of that Act.  The VCI argued that this raises the possibility that if records are released they may be used in subsequent defamation and other civil proceedings.  It stated that it is reasonable to assume that the functions of the VCI will be impaired if witnesses, complainants, registrants and members of the public become aware that the evidence they provided - including allegations of misconduct reported on a bona fide basis - may be used in subsequent civil proceedings against them or a third party.  It also argued that members of the public would be less likely to make a complaint.  

I have some difficulty in accepting, as a matter of course, that the disclosure of investigation reports could reasonably be expected to cause each of the various categories of parties outlined above to refuse to assist or give evidence in an investigation. Nevertheless, I accept the VCI's argument that the disclosure of full unabridged versions of such reports could reasonably be expected to cause at least some of the parties to be less willing to co-operate.  I considered whether it would be possible to redact these records for release as I believe that, suitably redacted, the reasonableness of this expectation would be reduced to a negligible level.  However, the applicant's information in these records is inextricably linked with the information of another individual.  The investigation the subject of this review arose as a result of an investigation in to the conduct of another individual whose personal information would be exempt under section 37(1) of the FOI Act.  As noted above, 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 and further that section 18(1) does not apply if the copy provided for thereby would be misleading (section 18(2) refers).  I cannot see that it is practicable to release a redacted copy of these records given the level of references to another individual.  On that basis alone, I accept that it is reasonable that if these records were released in their entirety it may prejudice the effectiveness of the VCI's investigative process by discouraging participation in that process.  I find, therefore, that section 30(1)(a) applies to records 6, 7 and 8.  

Section 30(2) provides that section 30(1) shall not apply where the body considers that the public interest would, on balance, be better served by granting rather than by refusing to grant the request. The applicant's arguments are based generally on his views that there have been malicious, unfounded complaints against him resulting in this investigation. He argued that it is in the public interest to investigate the chain of events that led to him being investigated.  As I noted above, it is not the function of this Office to adjudicate on how public bodies perform their functions generally and I will therefore not comment on the manner in which the VCI carried out its investigation.  However, it does seem to me that the applicant's interest is a private one rather than a public one and I am mindful of the obiter 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) where it was noted that a public interest (-œa 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.

I do accept however that there is a public interest in enhancing the transparency and accountability of the VCI in the manner in which it conducts investigations such as the one at issue in this case. Indeed, section 11(3) of the Act requires public bodies performing functions under the Act to have regard to, among other things, the need to achieve greater openness in their activities and the need to strengthen their accountability and to improve their decision making.

On the other hand, there is a countervailing public interest in ensuring that the effectiveness of the investigation process undertaken by the VCI and the methods used in those investigations are not prejudiced. In a case where further action is taken by the VCI on foot of an investigation, it is also important to note that there are existing mechanisms available to challenge the fairness of any such allegations at that stage as they would be entitled to fully defend any such proceedings.  
In this case, it seems to me that the public interest in ensuring that the investigative process is not prejudiced outweighs the public interest in extending the transparency and accountability of the VCI. I find that the public interest would, on balance, be better served by refusing access to the information in records 6, 7 and 8. 

In summary, therefore, I find that the VCI was justified in refusing access to records 6, 7 and 8 under section 30(1)(a). As such, I do not consider it necessary to examine the claims for exemption under the other provisions cited. 

Record 9

Section 29 - deliberative process
Section 29(1) allows for the refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations) and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. 

Record 9 is an extract from the minutes of a VCI meeting.  The VCI argued that the report contains matters relating to its deliberative process and that granting the request would be contrary to the public interest as release of the record would frustrate co-operation in relation to future investigations and would risk the withdrawal of voluntary co-operation.  

It should be noted at the outset that the public interest test at subsection (b) is a higher one than the public interest balancing test contained in other provisions of the FOI Act, such as that discussed above in relation to section 30(1)(a). It must be shown that the granting of the request would be contrary to the public interest.  As I noted at the outset of this decision, the onus is on the VCI to satisfy this Office that its decision in respect of the record was justified.
The VCI stated that the risk of withdrawal of voluntary co-operation is a legitimate basis for invocation of section 29(1).  It argued that it is in the public interest that the VCI's procedural autonomy is preserved and that release could lead to the identity of the individual who reported the issue of concern.  
I have examined this record and I do not accept that release could lead to disclosure of the identity of the complainant in this case.  The record records the decision of the VCI to take certain action in relation to the applicant.  It does not identify any other individuals.  I therefore am not satisfied that its release could reasonably be said to risk withdrawal of voluntary co-operation as no individuals, other than the applicant, are identified or mentioned in this record.  I am not satisfied that release of this record would be contrary to the public interest and I find therefore that section 29(1) does not apply to record 9.  I direct release of this record to the applicant.  

Records 10, 11 and 12

The VCI states that section 31(1)(a) applies to records 10, 11 and 12 as they qualify for legal professional privilege.  Record 10 is a letter to a professional legal advisor requesting legal advice, record 11 is the response from the legal advisor providing that advice and record 12 is an internal extract from minutes of a meeting discussing the advice received.  

Section 31(1)(a) - 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.  It does not require the consideration of the public interest.  Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
ยท confidential communications made between the client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice (legal advice privilege), and 
ยท confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege). 
Arguably, both legal advice privilege and litigation privilege could apply to these records.  I will address legal advice privilege in the first instance.    
Having examined the records, I am satisfied that record 10 is a confidential communication to a professional legal advisor requesting legal advice.  I am also satisfied that record 11 is a confidential communication from a professional legal advisor giving legal advice.  I find that section 31(1)(a) applies to both of these records.  

In relation to record 12, I am satisfied that this is part of a continuum of communication within the VCI originating from the request for legal advice and revealing the legal advice sought and obtained in records 10 and 11.  I find that it is exempt from release under section 31(1)(a) of the FOI Act.  
I affirm the decision of the VCI to refuse access to these records.  As I have found that legal advice privilege applies to these records it is not necessary for me to go on to consider litigation privilege.  

Decision

I hereby vary the decision of the VCI.  I affirm its decision to refuse access to records 1 and 3 under section 42(m)(i), to records 6, 7 and 8 under section 30(1)(a) and to records 10, 11 and 12 under section 31(1)(a) of the FOI Act.  I annul its decision to refuse access to record 9 under section 29(1) and I direct release of this record.  
For the sake of clarity,  I specify that, subject to sections 24 and 26 of the FOI Act, record 9 is to be released to the applicant within 3 working days of the expiration of the 4 week period available to the VCI for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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 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.



Elizabeth Dolan
Senior Investigator