Whether the Department was justified in refusing access to information contained in an inspection report relating to Dublin Zoo on the basis of section 32 of the FOI Act
5 January 2022
Background
Following correspondence between the parties, the applicant submitted a request to the Department on 21 July 2021 for the following:
1. All inspection reports carried out by [the] department at Dublin Zoo from 2017 to present.
2. All complaints received by [the] department regarding Dublin Zoo from 2017 to 2021.
3. All concerns, regarding the "welfare", "best interests" "veterinary care" "abuse", "neglect" received by [the] department regarding the care and welfare of the animals in Dublin Zoo from 2011 to 2021, whether that be from a member of the public, a veterinary nurse, a Vet an animal rights expert.
4. Any external reports or investigations carried out at Dublin Zoo from 2017 to 2021.
5. The post mortem of Gorilla Harry who died in 2016.
On 27 July 2021, pursuant to section 38 of the FOI Act, the Department notified Dublin Zoo that it was considering the release of four inspection reports from 2017 to 2020. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information about third parties, respectively) but that the record(s) should be released in the public interest.
In response to that notification, Dublin Zoo sought minor redactions of the identities of certain Dublin Zoo representatives from the four records. Before issuing its decision to the applicant, the Department informed Dublin Zoo that it would be releasing the reports with the redaction of all personal details. It further explained that when processing a previous request for the 2018 inspection report, Dublin Zoo had sought to redact certain other information under section 36.
The Department issued its decision to the applicant on 31 August 2021 wherein it granted partial access to the four records with the redaction of the identities of certain Dublin Zoo representatives and the Departmental Inspectors under section 37 and the information that had been redacted from the 2018 inspection report on foot of the previous request, under section 36. No records were identified as coming within parts 2 to 5 of the applicant’s request. The Department informed the applicant of her right to apply to this Office for a review of its decision within two weeks.
On 1 September 2021 the applicant sought a review by this office of the Department’s 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 applicant’s comments in her application for review and to the submissions made by the Department in support of its decision. 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
In her application for review, the applicant indicated that she was seeking a review of the decision to redact certain information from the records, apart from those redactions that name people. She also indicated that she was seeking a review of the decision taken on her overall request. The Investigating Officer took this to mean that the applicant was unhappy with the fact that no records had been identified as falling within the scope of parts 2 to 5 of her request and she to engage with the parties in relation to why the applicant considered other records ought to exist and on the steps taken by the Department to identify all relevant records.
It is important to note that a right to review directly to this Office arises only in respect of the records that formed part of the section 38 consultation process. We cannot generally review a first instance decision of the Department to refuse access to other relevant records. The appropriate course of action to take in such circumstances is for the applicant to apply directly to the body for an internal review of that part of the decision, following which an application can be made to this Office for a review of the subsequent internal review decision.
It is unfortunate that the Department did not explicitly state in its decision letter that it was refusing parts 2 to 5 of the applicant’s request on the ground that no relevant records exist or could be found and that it did not inform the applicant that she was entitled to apply for an internal review of that part of its decision. Nevertheless, and regardless of the fact that the Investigating Officer engaged with the parties on that specific matter, I find that this Office does not have jurisdiction in this review to consider whether other relevant records coming within the scope of parts 2 to 5 of the applicant’s request exist. As such, I have excluded that matter from the scope of this review. It remains open to the applicant to apply directly to the Department for an internal review of that aspect of its decision. If she is unhappy with the internal review decision, she can apply to this Office for a review of that decision.
In respect of the four records that were subject to the section 38 notification process, I note that the only information redacted from three of the records comprises information relating to the identities of Dublin Zoo representatives and the Departmental Inspectors. As the applicant said that she was not seeking a review of the redactions of the names of individuals, I do not need to further consider those records.
In respect of redactions made to the 2018 report apart from the identities individuals, i.e. redactions from section 3.7 on page 5 and from the ‘Recommendations’ section on page 12, the Department indicated that it was no longer seeking to rely on section 36 to refuse access to that information. Instead, it argued that sections 32(1)(a)(ix) and 32(1)(b) applied.
The scope of this review is therefore concerned solely with whether the Department was justified in refusing access, under sections 32(1)(a)(ix) and 32(1)(b) of the FOI Act, to the relevant information in the 2018 Inspection report.
Preliminary Matter
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the information at issue was justified.
Analysis and Findings
Section 32(1)(a)(ix) of the FOI Act provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the security of a building or other structure or a vehicle, ship, boat or aircraft.
Section 32(1)(b) 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.
Where a body relies on section 32(1) to refuse access to information, it should be in a position to show how or why releasing the information could reasonably be expected to cause the harm it has identified.
Under section 25(3) of the Act, I must take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the description I can give of the information at issue and of the Department’s arguments for refusing access are somewhat limited. In essence, the Department’s argument is that the release of the information may have an effect on the security of the site (presumably the Zoo) or certain staff. However, it did not explain how such harms might arise, nor is it apparent to me how such harms might arise as a result of the release of the information at issue.
I find, therefore, that sections 32(1)(a)(ix) and 32(1)(b) do not apply to the information at issue and I direct the release of the information.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision to redact certain information from the 2018 Inspection report under sections 32(1)(a)(ix) and 32(1)(b) and I direct the release of the information.
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.
Stephen Rafferty
Senior Investigator