31 May 2019

 

This review arises from my decision in Case No. 170477, which issued on 11 June 2018 in relation to the applicant's FOI request to the Department of 6 February 2017 as subsequently modified (the request). The request sought access to 11 categories of records relating to certain animal movements. In particular, parts 1 and 6-10 of the request, to which the present review relates, sought access to records concerning: 

 

1. An animal movement the subject of a particular Compliance Certificate.

6. DNA sample results taken for an animal on a particular date.

7. DNA records and full particulars of a certain dam.

8. DNA records and full particulars of a certain other dam.

9. DNA records and full particulars of a certain animal.

10. Full profile particulars, movement and details concerning a certain animal tag.

 

The Department listed the various records covered by the 11 parts of the request as records 1 to 1(e), records 2 to 2(c), etc. In my review in Case No. 170477, it transpired that the Department had withheld records 1(e), 6(b), 7, 7(b), 8, 8(b), 8(d), 9, 9(b) and 10(e) on the basis of their general nature, rather than by having regard to their actual contents. The relevant part of my decision in that case annulled the Department's refusal to grant access to these particular records and directed it to make a fresh decision on them.

 

The Department's ensuing decision of 10 August 2018 refused access to records 7 and 7(b) under section 15(1)(a) of the FOI Act (records do not exist) and to records 8(d) and 10(e) under section 15(1)(c) (unreasonable interference with the Department's work). It granted access to parts of the records covered by the other relevant parts of the request and relied on the section 37 exemption  (personal information) in relation to the withheld parts. The decision also referred to sections 29 (deliberative processes) and 30(1)(a) (investigations by an FOI body).

 

The applicant sought an internal review on 28 August 2018, in which he also argued that the Department should hold more relevant records. The Department's internal review decision of 14 September 2018 identified further records and granted partial access to some of them. It affirmed its refusal of records 7 and 7(b) under section 15(1)(a). It relied on section 30(1)(a) in relation to parts of record 6(b). It said that record 8(d) contained information relating to a third party that was exempt under section 37, and that other parts of the record are contained in records 6(b) and 9 and in records granted to the applicant in its first decision on the request. It said that some of record 10(e) comprised documents supplied to the Department by the applicant and that the rest of it relates to a third party and was exempt under section 37. It relied on section 37 in relation to all of the remaining withheld information. The applicant applied to this Office for a review of the Department's decision on 4 January 2019.

 

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 exchanges and correspondence between this Office, the Department and the applicant. I have had regard also to the provisions of the FOI Act and to copies of the withheld records.

 

The scope of this review is confined to whether the Department was justified in refusing to grant access to the rest of records 1(e), 6(b), 7, 7(b), 8, 8(b), 8(d), 9, 9(b) and 10(e). It cannot consider records covered by other parts of the request or expand the original scope of parts 1 and 6-10.

 

The applicant says that certain records to which he was granted access were "tampered with" and details erased from them. I note that the Department disputes this. This Office asked the Department to comment on the applicant's view. The Department wrote to him on 1 March 2019 saying that it inadvertently omitted the dates and times of two emails to which it had granted access and that the other two records contain dates within their text. The applicant says that the dates were deliberately omitted and that the Department could have resolved the issue when he first raised this matter with it, rather than only when asked about it by this Office. 

 

The Commissioner has discretion under section 44 of the Act to carry out general investigations into the practices and procedures of FOI bodies. These are separate from reviews under section 22 of the FOI Act. All previous such investigations have involved more than one public body. While it would have been best practice for the Department to have addressed the applicant's query when it was first raised, I do not consider that an investigation under section 44 is warranted in the circumstances of this case. 

 

 

In making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the description that I can give  of the records in my analysis is very limited. 

 

I must also take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large. As I said in Case No 170477, any right that the applicant may have to receive information or records as part of processes or procedures separate to FOI does not, of itself, create any entitlement to those or similar details under FOI. 

 

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

 

As explained in this Office's letter to the applicant of 5 March 2019, it is not normally the Commissioner's function to search for records. Neither does the Commissioner have any function under the FOI Act in relation to records that a requester maintains that should have been created but which were not. 

 

The applicant says that DNA testing/sampling was carried out on the dam referred to at part 7 of the request and that records of such testing should have been released to him. The Department says that it is not standard practice to carry out DNA testing on each bovine on its database. It says that Veterinary Inspectors (VIs) have discretion to require the completion of such tests in various circumstances and that, in this case, the relevant VI is adamant that DNA tests were not carried out on this animal either by, or on behalf of, the Department. The Department's submission contained other information in support of this position, which I cannot disclose due to the requirements of section 25(3). However, I have no reason to dispute the Department's position that records comprising DNA tests of the particular dam do not exist. I find section 15(1)(a) to apply to parts 7 and 7(b) of the request. 

 

The applicant says that there should exist further records covered by his request. It is worth emphasising that this review is concerned only with records 1(e), 6(b), 7, 7(b), 8, 8(b), 8(d), 9, 9(b) and 10(e). I also agree with the Department's view that parts 9 and 9(b) do not cover records of correspondence between the VI and others.

 

This Office has outlined to the applicant the Department's description of its searches for records in this case, which I see no need to repeat in this decision. The Department says that records of verbal discussions between personnel may not have been created. It says that access to other records was granted at internal review stage or further to its initial decisions on the request. It says that records may concern several parts of the request and that it sees no reason to grant access to more than one copy of a record. Having considered the Department's submissions, I am satisfied it has taken all reasonable steps to search for records covered by this review. I find that section 15(1)(a) applies. 

 

I will also address the applicant's argument that he should have got a further DNA report in relation to part 6(b) of the request. He provided this Office with a copy of an email string between him and a DNA laboratory dating from 2018 when  the laboratory sent him  a copy of the report concerned. The email string suggests that the laboratory would have sent the report to a particular VI in the Department on a date in April 2015.

 

It is important to note that part 6(b) of the applicant's request is concerned with DNA sample results taken for an animal in 2016. Part 5 of the request, which is not covered by this review, is concerned with DNA sample results for the same animal in 2015. I am not satisfied, in the first place, that this review extends to whether or not the Department holds a copy of any DNA report on the animal that may have been sent to any of its VIs in 2015. 

 

For completeness, however, the Department has provided this Office with a copy of a DNA report for the animal concerned. It is dated May 2015 and the Department says that it was part granted to the applicant further to his original FOI request. It also says that the particular VI has confirmed that he does not have any DNA documentation for the period around 21 April 2015. 

 

While this may not clarify matters sufficiently for the applicant, it is important to note that the FOI Act does not require FOI bodies to account categorically for each record a requester says that it should hold. Rather, section 15(1)(a) requires bodies to carry out reasonable searches for records. Having regard to the Department's comments, I would see no reason to pursue this issue further even if it were covered by my review. 

 

 

By way of context and as noted in my decision in Case No 170477, the applicant alleges that a third party tampered with ear tags and passports and swapped animal identities in respect of an animal consigned to his herd number. He also questions the legality of certain steps taken by the Department's staff in updating its Animal Identification and Movement (AIM) system. The Department investigated the allegations concerning the animal, which resulted in the creation of most of the records covered by the request, and which also had regard to various existing entries on its AIM system.

 

The Department relies on section 37 in relation to most of the remaining withheld information. It also relies on section 30(1)(a) in relation to parts of record 6(b). This is a record created by the applicant during the Department's investigation and from which the Department has withheld various annotations made on it by a VI. Given the overall context set out above, at the outset I consider it appropriate to also consider section 37 in relation to these annotations. 

 

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 seeking the record. 

 

Section 37(1) does not apply in certain circumstances set out in section 37(2). One such circumstance is set out at section 37(2)(a), which provides for the release of personal information relating to a requester. However, section 37(7) provides for refusal of a request where access to the record sought would, in addition to disclosing personal information relating to a requester, disclose personal information relating to individuals other than the requester (commonly known as joint personal information). In addition, a record that is exempt under section 37(1) may be granted where (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual(s) to whom the information relates should be upheld or (b) the grant of the request would benefit the individual(s) aforesaid.

 

The Department's arguments in this case are the same as those it made in Case No. 170477. My decision in that case found that section 37(1) of the FOI Act applied to the records concerned. I also found that section 37(2) of the FOI Act did not apply, that the public interest (section 37(5)(a)) did not weigh in favour of granting the request for withheld third party personal information and that section 37(5)(b) was not relevant.

 

It is self-evident that the records in Case No 170477 are directly linked to the records covered by this review, and that the same background and context is relevant. In the circumstances, it is appropriate for me to adopt the analysis I set out in Case No. 170477 for the purposes of my decision in this case. Accordingly, I find that section 37(1) applies to the records on the basis that they contain the personal information of identifiable individuals other than the applicant and/or personal information of such individuals that is inextricably linked to information about the applicant's herd number; that none of the exceptions in section 37(2) apply and that section 37(5)(b) is not relevant; and that the public interest that access should be granted to the records does not outweigh the public interest that the rights to privacy of the third parties should be upheld. I should also say that, while the applicant says that certain details such as herd numbers and tag numbers are in the public domain, I cannot disregard the context in which such details are contained in the records i.e. in records relating to allegations of improper actions by third parties.

 

In the circumstances, there is no need for me to consider the Department's application of section 30(1)(a) to the annotations withheld from parts of record 6(b). 

 

 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision. I find that 15(1)(a) applies on the basis that certain records do not exist and other records cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I find the remaining records to be exempt under section 37(1) of the FOI Act.  

 

 

 

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 not later than four weeks after notice of the decision was given to the person bringing the appeal. 

 

 

 

 

 

 

-----------------------