Whether the Council was justified in redacting certain information from records concerning the seizure of the applicant’s dogs under sections 32 and 37 of the FOI Act and in refusing access to veterinary records concerning those dogs following their seizure under section 15(1)(a) on the ground that the records sought do not exist

27 May 2021

Background

This case has its background in the Council’s seizure of certain dogs belonging to the applicant on foot of a court order. In a request dated 15 February 2020, the applicant sought access to any information on the whereabouts of her dogs, including their condition, health, etc. Following telephone contact between the parties, the Council described the applicant’s request as being for records which show where the dogs are gone, and veterinary records of the dogs after they were seized.

In a decision dated 12 March 2020, the Council part-granted the applicant’s request, redacting certain information from the records under section 37 of the FOI Act. It located 3 records relevant to the applicant’s request, totalling 15 pages. Records 1 and 2 were redacted under section 37 of the FOI Act, while record 3 was released in full. The applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 8 December 2020, this Office received an application for a review of the Council’s decision from the applicant.

The Council made a number of submissions during the review, details of which were notified to the applicant, including the fact that the Council sought to rely on section 32(1)(b) of the FOI Act to withhold certain information. This Office also invited submissions from a third party organisation in the course of the review. While no written submission was received, a staff member of the third party indicated in a telephone call on 25 March 2021 that she did not think the information at issue required redaction.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made to date, including the applicant’s comments in her application for review and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned with whether the Council was justified in redacting certain information from the records released in connection with the seizure of the applicant’s dogs under sections 32 and 37 of the FOI Act and in refusing access to veterinary records concerning those dogs following their seizure under section 15(1)(a) on the ground that the records sought do not exist or cannot be found.

Preliminary Matters

Before I consider the substantive issues arising in this case, I would like to make a number of preliminary comments. First, the applicant should note that this Office has no role in considering the appropriateness, or otherwise, of the seizure of her dogs by the Council. Our role is confined to reviewing the decision taken by the Council on her request for information as to where the dogs are gone and any related veterinary records.

Secondly, it is also important to note that the release of a record under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which a record released under the Act may be put.

Finally, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest

Analysis and Findings

Section 15(1)(a)

The Council did not identify any relevant records in respect of the second part of the applicant’s request for access to veterinary records following the seizure of the dogs. Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether the decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

During the course of the review, the Council provided submissions to this Office in which it outlined details of the searches carried out and of its explanation as to why no relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Council’s position is that the records sought in the second part of the applicant’s request do not exist or cannot be found, as it would only have records of the type sought by the applicant in particular circumstances, which did not occur in this case as the dogs did not require medical attention at the time.

The Council stated that it would not ordinarily receive any veterinary records after the seizure/rehoming of dogs. It said that if the seizure is pursuant to a court order, all records, if any, should be kept by the Court and would only be given to the Dog Warden if deemed necessary; for example, if the dog had a pre-existing medical condition. It said that in this instance, the Dog Warden service was used by the Courts Service to rehome the dogs on behalf of the Court. It said the Dog Warden was not provided with any such records from the Court.

The Council added that if medical assistance was required for any dogs while in the care of its Dog Wardens, records would be held by the Dog Warden and a copy of a receipt/invoice from the Vet involved would be submitted to the Veterinary Department for reimbursement. It said no receipts have been submitted for re-imbursement of payment in relation to these dogs. It said that once the dog is rehomed, ownership is transferred, and the Dog Warden subsequently has no knowledge or access to veterinary records held by the new owner.

Having considered the details of the searches undertaken and its explanation as to why no records exist or can be found, I am satisfied that the Council has carried out all reasonable steps in an effort to ascertain the whereabouts of the records relevant to the second part of the applicant’s request. I find, therefore, that the Council was justified in refusing access to veterinary records concerning the dogs following their seizure on the ground that no such records exist.

Section 37

The Council originally redacted information from the records released under section 37(1) of the FOI Act. Following correspondence with this Office, wherein this Office noted both that section 37 cannot apply to organisations and that the exclusion to the definition of personal information contained in section 2(I) of the FOI Act was relevant, the Council subsequently stated that it was withholding some of the redacted information under section 32(1)(b). I will deal with the information now withheld under section 32(1)(b) separately.

The information that remains withheld under section 37(1) is the names/signatures of individuals from two organisations that rehomed the dogs seized by the Council, all of which is contained in Record 2. Record 2 comprises copies of indemnification documents signed by individuals on behalf of the organisations rehoming the dogs from the Council’s Dog Control Service.

Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual). Personal information is defined in 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 their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual". I am satisfied that the exclusion to the definition contained in section 2(I) of the FOI Act does not apply. I am therefore satisfied that the names/signatures of the individuals comprise personal information within the meaning of the FOI Act and that section 37(1) applies.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. Furthermore, section 37(5) provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view, the release of the information to which I have found section 37(1) to apply would not benefit the third parties to whom the information relates. I am satisfied that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave 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 Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

I find no relevant public interest in granting access to the withheld information in this case that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I find that section 37(5)(a) does not apply. I find, therefore, that the Council was justified in redacting, under section 37(1) of the Act, the names/signatures of individuals who signed the indemnification documents on behalf of the organisations rehoming the dogs from the Council’s Dog Control Service.

Section 32

The Council redacted the name(s) and/or initials of the Dog Warden/Pound Keeper(s), the location of the pound(s) where the dogs were initially placed, and the names and addresses of the two organisations that rehomed the dogs from the Council, under section 32(1)(b) of the FOI Act. The name(s) of the Dog Warden/Pound Keeper(s), the location of the pound(s) involved, and the names of the two organisations that rehomed the dogs are contained in pages 1 – 6 of Record 1, and the names and addresses of the two organisations that rehomed the dogs are contained in pages 1 – 7 of Record 2.

Section 32(1)(b) of the FOI Act provides that an FOI body may refuse to grant a request if access to the record concerned could, in the opinion of the head, reasonably be expected to endanger the life or safety of any person.

The Council said in its submissions that it has serious concerns for the safety of the operator(s) of the dog pound(s) and that of their family/families should their identity/identities and location(s) be disclosed. It said that these pounds are operated by private individuals on behalf of the Council and considerable animosity and threats to personal safety have been expressed on social media towards them. It said that members of the public have in the past engaged in serious online abuse, posting various videos online making defamatory statements about staff working on behalf of the Council, making threats against these members of staff, and encouraging others on social media to engage to ‘bring [the staff] down’.

The Council added that a particular instance of this was reported to the Gardaí as the staff involved was/were very fearful for their safety and that of their family/families at the time as they were partially named on social media. The Council argued that it is reasonable to protect its staff by ensuring that members of the public are not made aware of the name(s) and location(s) of the pound keeper(s), Dog Warden(s) and/or location(s) of the pound(s) involved in order to protect them from any possibly aggrieved previous owner(s).

I accept that the Council has satisfactorily explained the nature of the harm that might arise by the release of the name(s) of the Dog Warden/Pound Keeper(s)and the location(s) of the pound(s) where the dogs were initially placed and that it has satisfactorily shown that its expectation of that harm arising is reasonable. I find, therefore, that section 32(1)(b) applies. I should make it clear that this finding does not mean that either the Council or this Office is implying that the applicant would cause any harm to Council staff. However, as noted earlier in the decision, I must have regard to the fact that the release of a record under FOI is generally accepted to be equivalent to disclosing it to the world at large.

Section 32(3) provides that section 32(1) does not apply in certain limited circumstances. In my view, no such circumstances arise in this case. I find, therefore, that the Council was justified in redacting, under section 32(1)(b), information relating to the identities of the Dog Warden/Pound Keeper(s) involved and the location(s) of the pound(s).  

The Council also argued that the names and locations of the two organisations involved in rehoming the dogs should be redacted under section 32(1)(b) of the FOI Act. Both are non-profit animal rescue organisations that rehome dogs (and potentially other animals) on behalf of the Council. One is now solely responsible for pound/rehoming facilities operated on behalf of the Council, and it is well-known that this organisation is responsible for rehoming animals to new owners. The second organisation was consulted as part of this review and has no objections to the identifying information being released. I am satisfied that the disclosure of the identity of the organisations in question and their addresses as contained in the records at issue cannot reasonably be expected to endanger the life or safety of any person. I find that section 32(1)(b) does not apply to those parts of the records identifying the names of the organisations involved and their locations.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision in this case. I direct the release of the names and locations of the two organisations that rehomed the dogs in question.  

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