Whether the HSA was justified in refusing access to records relating to audits carried out at a named milk laboratory under sections 15, 30, 35, 36 and 41 of the FOI Act
20 April 2022
Background
In a request dated 18 May 2021, the applicant sought access to:
- any external audits carried out by the HSA at a named milk laboratory since 2013;
- disclosure of any fines, penalties, warnings or guidelines for improvement issued to the laboratory by the HSA;
- details of any companies (foreign or domestic) that may have assisted or partnered with the HSA on these audits;
- details of any penalties, fines or other monetary charges which were issued to any milk supplier as a result of wrong tests done by this facility including if tests carried out on milk samples were outside an industry standard tolerance or procedure such as any ISO standard;
- details of whether the Irish National Accreditation Board (INAB) has accredited the named laboratory with ISO 9622.
On 28 May 2021, the HSA refused access to records relevant to the first two parts of the applicant's request under sections 30(1)(a), 35(1)(a) or (b), 36(1)(b) and 41(1)(a) of the FOI Act. It also refused access to records relevant to the remaining parts of the applicant's request under sections 15(1)(a) or (d) of the FOI Act on the basis that these records either do not exist or are already in the public domain. The applicant sought an internal review of that decision, following which the HSA affirmed its refusal of the request. On 13 August 2021, the applicant sought a review by this Office of that decision.
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 by the applicant and the HSA. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
The scope of this review is confined to whether the HSA was justified in refusing access to records, as identified on the schedule of records provided to the applicant, under sections 15(1)(a) or (d) of the FOI Act and whether it was justified in refusing access to records, as identified on its schedule, under sections 30(1)(a), 35(1)(a) or (b), 36(1)(b) or 41(1)(a) of the FOI Act.
Preliminary Matters
Parts of the applicant's request seek information or answers to questions. Requests for information, as opposed to requests for records, are not valid requests under the FOI Act. On a related note, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or containing the information sought.
While I am required to give reasons for my decision, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision are necessarily somewhat limited.
Analysis and Findings
Section 15 - Refusal on administrative grounds
Section 15(1)(a) Adequacy of Searches
The applicant has requested details of any companies (foreign or domestic) that may have assisted or partnered with the HSA on audits of the named laboratory and details of any penalties, fines or other monetary charges which were issued to any milk supplier as a result of wrong tests done by the laboratory. The HSA refused access to records relevant to these parts of the applicant's request under section 15(1)(a) of the FOI Act on the basis that they do not exist.
Section 15(1)(a) of the 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. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that 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 also assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In communications with this Office, the applicant states that milk processing companies impose fines on farmers based on results from the laboratory in question. He states that farmers have no transparency in relation to these fines or the underlying sampling process, which is hugely frustrating for them. He states that records should be provided to show if fines were issued to milk suppliers as a result of tests wrongly done by the laboratory. He contends that this would allow farmers some transparency into the testing process.
During the course of the review, this Office requested the HSA to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request made including those specifically mentioned by the applicant and to respond to detailed queries in relation to its record-management practices. The HSA's response to these queries was provided to the applicant and is set out in summary here.
In its submissions, the HSA states that the accreditation of laboratories is carried out by the Irish National Accreditation Board (INAB) which is one of the units within the HSA. The HSA says it understands, based on communications with the applicant, that when he requested information in relation to bodies that partnered INAB on audits, he had organisations such as Teagasc in mind. The HSA says that while INAB contracted individual experts to assist in the assessments, it did not partner with any organisation like Teagasc or otherwise in its assessments of the laboratory. It states that there are no records of such partnership because such a partnership never existed.
The HSA says that records of penalties etc. issued to milk suppliers is completely outside of INAB's remit. It states that INAB has no relationship with the dairy and INAB's assessment team members have no role in what the dairy does with the test results, nor would it have access to such records if they existed. It states that INAB is only concerned with the ability of the laboratory to produce results that are consistent and reliable, and only then in relation to the tests listed on the schedule of accreditation. The HSA says it is satisfied that INAB records containing the information requested do not exist and have never existed in INAB's system.
The HSA states that records are categorised by laboratory and then by year within ShareFlow so it was a matter of going to the folder for the relevant laboratory on ShareFlow and then locating the assessment reports for each annual event in the subfolders within it. It states that two assessment report documents were not available in softcopy and these were retrieved from the physical file. The HSA states that because INAB has never partnered with Teagasc or any other organisation in its assessments of the laboratory, no records relevant to that part of the request were found. It states that a search was conducted within INAB's assessment reports in case there was a mention, in passing, of penalties being imposed on farmers by the dairy that were issued wrongly as a result of wrong tests by the laboratory and no such mention was found.
Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the FOI body concerned takes all reasonable steps to locate relevant records. FOI bodies are not required to search indefinitely for records in response to an FOI request. Taking into account the search details provided by the HSA, its responses to the applicant's points above, and to this Office's queries, I am satisfied that the HSA has taken all reasonable steps to ascertain the whereabouts of any further records within the scope of the request. I find, therefore, that section 15(1)(a) of the FOI Act applies.
Section 15(1)(d) - Information in the public domain
Section 15(1)(d) of the FOI Act provides that FOI bodies may refuse to grant a request where the information is already in the public domain.
The applicant has requested details of whether INAB has accredited the named laboratory with ISO standard 9622.The HSA states that it wrote to the applicant and informed him that INAB has not awarded accreditation to the laboratory for the performance of tests to ISO standard 9622. It stated, however, that the schedule of accreditation does show that the laboratory is accredited to perform tests to IDF 141, which has been adopted as ISO 9622. It stated that this record can be located on its website (www.inab.ie) therefore provision of the record was refused under section 15(1)(d) of the Act. The HSA states that in prior correspondence with the applicant it outlined the existence of scopes of accreditation on the INAB website. It states that to verify that the information is in the public domain, one can access its home page and easily navigate to the listing of accredited laboratories and scrolling down the alphabetical list brings you to the laboratory in question. The HSA provided this Office with a screen grab from its website which it says shows the entry for the laboratory in question.
This Office's Investigator accessed the listing for the relevant accredited laboratory, which contains reference to standard IDF 141 in the schedule of accreditation document. The Investigator also provided this information and a link to the relevant webpage to the applicant to allow him to access the webpage if he wishes.
I have confirmed the content of the website in relation to the named milk laboratory. In the circumstances, I find that the HSA was justified in withholding access to records relevant to this part of the request under section 15(1)(d) of the FOI Act.
Section 41: Enactments relating to non-disclosure of records
The applicant has requested any external audits carried out by the HSA at the named milk laboratory since 2013 and disclosure of any fines, penalties, warnings or guidelines for improvement (which the HSA terms non-conformity reports) issued to the named milk laboratory by the HSA. The HSA refused access to records relevant to these parts of the applicant's request under sections 30(1)(a), 35(1)(a) or (b), 36(1)(b) or 41(1)(a) of the FOI Act. Section 41(1) is a mandatory exemption, I will examine its applicability first. It provides that a request shall be refused if -“
a. the disclosure of the record is prohibited by law of the EU or any enactment, other than a provision of an enactment specified in column (3) of Part 1 or 2 of Schedule 3 of the FOI Act, or
b. the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the FOI body would refuse to disclose the record pursuant to that enactment.
In summary, the section provides for the mandatory refusal of access to certain records whose disclosure is prohibited, or whose non-disclosure is authorised, by other enactments, unless the relevant provisions of those enactments are specified in Schedule 3.
An FOI body relying on section 41(1) for its refusal to grant access to a record should specify the relevant provision which, in its view, prohibits disclosure of the record or authorises its non-disclosure. In this case, the HSA cited Articles 8(4) and 11(1) of Regulation (EC) 765/2008 (the Accreditation Regulation) and the relevant harmonised standard referred to in that Regulation which is ISO/IEC 17011:2017. Regulation (EC) 765/2008 is not listed in Schedule 3 to the FOI Act.
In its submissions to this Office, the HSA states that assessment reports and non-conformity reports are generated from information obtained during the assessment process and it is prohibited from disclosing these reports under the Accreditation Regulation.
The Accreditation Regulation provides as follows:
"Article 1.2: This Regulation provides a framework for the market surveillance of products to ensure that those products fulfil requirements providing a high level of protection of public interests, such as health and safety in general, health and safety at the workplace, the protection of consumers, protection of the environment and security;
-¦
"Article 8.4: A national accreditation body shall fulfil the following requirements -“
it shall have adequate arrangements to safeguard the confidentiality of the information obtained;
-¦
"Article 11(1): National accreditation bodies that demonstrate conformity with the criteria laid down in the relevant harmonised standard, the reference of which has been published in the Official Journal of the European Union, by having successfully undergone peer evaluation under Article 10 shall be presumed to fulfil the requirements laid down in Article 8."
The HSA states that the relevant harmonised standard is ISO/IEC 17011:2017 and clause 8.1.1 of this standard provides:
"Clause 8.1.1: except for information that the conformity assessment body makes publicly available, or when agreed between the accreditation body and the conformity assessment body (e.g. for the purpose of responding to complaints), all other information obtained during accreditation process is considered proprietary information and shall be regarded as confidential."
In its submissions, the HSA states that the records at issue were created by INAB from information obtained during the accreditation process. It states that INAB, as the National Accreditation Body, must comply with the requirements of the Accreditation Regulation. It states that under European Union law, regulations have direct effect and do not require national transposition therefore the confidentiality obligations set out in the Accreditation Regulation apply directly to INAB. It states that Articles 8(4) and 11(1) of the Accreditation Regulation and the relevant harmonised standard prohibit INAB from disclosing records of any information obtained during the accreditation process.
The HSA states that in carrying out its statutory function as the national body with responsibility for accreditation in Ireland, INAB must deal confidentially with, and gather information through confidential interactions with, all relevant parties to an assessment. It states that confidentiality is essential to allow INAB and all European accreditation bodies to operate effectively and to underpin the quality and robustness of a thorough and objective accreditation service to determine the technical competence of the organisations assessed. It states that because the Accreditation Regulation requires that information obtained during the accreditation process is kept confidential, and because the records requested were generated from information obtained during the accreditation process, any disclosure of such records would constitute a breach of the Regulation.
The applicant states that according to INAB, disclosure of the records is prohibited by EU Law. He states that this argument would be acceptable if the named laboratory was not UK owned. He states as we are in a post-Brexit era, the interests of a UK owned company should not take precedence over the interests of Irish citizens who are EU citizens. The applicant states that the laboratory approaches INAB for accreditation and this accreditation is not a legal requirement for them to carry out milk testing for payment. He states that INAB, a publicly funded body, is placing the commercial interests of a UK owned company over the interests of thousands of Irish Dairy Farmers who have been given no transparency on testing by this laboratory.
It is important to note that there is no public interest test in section 41 of the FOI Act. I cannot therefore consider whether the public interest would be served by release of the records when examining whether they are exempt under section 41 of the Act. It is also important to note that records at issue are held by the HSA, which is an FOI Body. The fact that the records concern a company, whose owners might be from outside the EU, is not a factor that I can take into consideration under the FOI Act.
I understand that the accreditation process is an independent third-party assessment of the technical competence of organisations for defined testing activities against internationally recognised standards. I also understand that an INAB laboratory assessment involves an investigation into how a laboratory performs particular tests and that INAB will examine the test methods used, witness the method being performed by a laboratory technician and then describe what was seen in the assessment report. As outlined above, the applicant has sought access to assessment reports as well as non-conformity reports issued by INAB to a named milk laboratory.
I accept that INAB is obliged to safeguard the confidentiality of information it obtains in the course of performing its functions under the Accreditation Regulation. I also accept that the records at issue were created from information obtained during INAB assessments carried out under the Accreditation Regulation. In my view, the release of assessment reports and non-conformity reports is prohibited having regard to Articles 8(4) and 11(1) of the Accreditation Regulation and the relevant harmonised standard referred to in the Accreditation Regulation. I find, therefore, that section 41(1)(a) applies and that the HSA was justified in refusing access to the records sought pursuant to that provision.
Given that I find the records at issue to be exempt from release under section 41(1)(a) of the FOI Act, I do not consider it necessary to determine whether sections 30(1)(a), 35(1)(a) or (b) or 36(1)(b) also apply to the records at issue.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSA to refuse access to further records, as described above, under section 15(1)(a) or (d) of the FOI Act. I also affirm the HSA's decision to refuse access to assessment or non-conformity reports concerning the named laboratory under section 41(1)(a) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Deirdre McGoldrick
Senior Investigator
