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Mr J and Department of Agriculture, Food and the Marine (FOI Act 2014)

Case Number: 160402

Whether the Department was justified in its decision to refuse access to information in records relating to the movement of 19 of the applicant's cattle under sections 15(1)(a) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

There is consensus among the parties to this review that in March/April 2016, an agent acting on behalf of a receiver erroneously seized 19 of the applicant's cattle from the lands of a named third party. On 20 July 2016, the applicant, through his representatives, sought access to all records from 1 December 2015 relating to himself, to include "movement records in relation to animals - details of authorisations etc to remove same from herd etc".

In its decision of 12 August 2016, the decision maker referred to a conversation he had with the applicant's representatives in an effort to identify the precise records sought, and stated that the applicant had indicated that the movement records he was seeking were those relating to the 19 cattle as described above. He decided to part-grant the request. Two records from the Department's Animal Identification and Movement system (AIM) were released in full, while a number of email records were released in part with the redaction of certain information on the grounds that it was exempt from release under section 37(1) of the FOI Act as it comprised personal information relating to a third party or that it was outside the scope of the request.

In his request for an internal review of the decision to redact certain information, the applicant also suggested that certain other records had not been considered for release. On 13 September 2016, the Department affirmed its original decision to redact the relevant records and it refused access to other records on the grounds that a certain record does not exist and that certain other records are exempt from release under section 37(1).

On 20 September 2016, the applicant sought a review by this Office of the Department's decision. I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to the contents of the records at issue. I have also had regard to correspondence between the applicant and the Department on the matter, and to correspondence between this Office and both the Department and the applicant in relation to this review. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it prepared when processing the FOI request.

Scope of Review

In a letter of 20 September 2016 to the Department, the applicant argued that the full file should be released, including all contact between the agent and the receiver and the Department relating to the movement of the cattle. In a further letter of 1 December 2016 to this Office, the applicant stated that he required access to details of how a third party had access to his file to facilitate the movement of his cattle to another herd and to the records authorising the movement of the cattle.

It appears that, following the decision maker's engagement with the applicant regarding the scope of his request, the Department interpreted the scope as being confined to specific movement records. In an email of 10 February 2017 to this Office, the Department's decision maker stated that he had contacted the applicant's representatives before issuing a decision on the request in light of the significant number of movements that had taken place in respect of the applicant's herd for the period on question. He stated that the applicant's representatives indicated that they were only interested in the 19 animals moved in March/April 2016 and that they made no mention of any issues arising in respect of those movements, nor was he aware of any issue at that time. As a result, the decision maker interpreted the clarification as a request for the movement records only.

While the decision maker's interpretation of the request was understandable in the circumstances described, it seems to me that the applicant did not share that interpretation. Rather, he continued to seek all relevant records relating to the movement of the cattle and not just those that recorded the movements. This serves as a good example of why it is important for public bodies to require requesters to confirm any subsequent refinement of requests in writing, to ensure that both parties are absolutely clear about the scope of their requests.

Having regard to the correspondence available to this Office and to the absence of documentation in support of the Department's interpretation of the refined request, I am satisfied that the applicant was seeking all records relating to the movement of the cattle, and not just those that simply recorded the movements. I am also satisfied that the information that was redacted from the emails released, on the ground that it is outside the scope of the request, is, indeed, within scope and must be considered for release.

Therefore, this review is concerned with whether the Department was justified in its decision to redact certain information from the records released under section 37 of the Act and whether it was justified in deciding that no further records coming within the scope of the applicant's request exist or can be found.

Preliminary Matters

Before I address the substantive issues arising, I wish to draw the applicant's attention to two important points. First, under section 13(4) of the Act, the reasons a requester gives for making a request must generally be disregarded in deciding whether to grant or refuse a request. Secondly, it is important to note at the outset that this Office has no role in examining the manner in which public bodies carry out their functions generally. As such, this review does not involve a consideration of the appropriateness, or otherwise, of the Department's actions in respect of the movement of the cattle in question.

Analysis and Findings

Before I proceed to consider the various provisions of the Act, it is worth setting out the Department's explanation of its role in relation to the movement of cattle. According to the Department, farm to farm movements are normally carried out by means of a compliance certificate (manual or electronic), completed by the buyer and seller. If done manually, both the seller and the buyer sign the compliance certificate (maximum of 10 animals per certificate) and the seller forwards same to an agency engaged by the Department to carry out bovine registrations, movements etc. for processing. The Department records details of bovine animals on herd keepers' profiles on its AIM system for the purpose of recording the whereabouts of any given bovine animal at any given point in time for disease control purposes. The recording of details on keepers' profiles does not infer ownership of the animals.

Section 15(1)(a)
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

As outlined above, the Department initially identified a small number of records as coming within the scope of the request, namely two records from the Department's AIM system and a number of email records relating to the recording of certain cattle on the AIM system. Following a consideration of the applicant's request for an internal review of the original decision, in which he made reference to a court order, the Department stated that no court order could be located but that a "Deed of Appointment of Receiver" had been identified, which could not be released under section 37 of the Act. I have examined the Deed of Appointment in question, a copy of which was provided to this Office for the purposes of this review. I am satisfied that it does not relate to the applicant, or to the movement of his cattle. I find, therefore, that it is not captured by the scope of the applicant's request.

In essence, the Department's position is that no further relevant records exist or can be found. The applicant argued that further records should exist documenting the Department's involvement in the movement of the animals in question. In response, the Department has stated that it did not authorise the movement of the animals. It stated that "in or around the 10 of May 2016" the agent contacted the Department as he was anxious to sell the cattle he had seized but did not have cattle identity cards. It stated that it then sought the authority under which the receiver was acting (a deed of appointment later being identified) and confirmation from the receiver that the agent was acting on his behalf. The Department also stated that it subsequently recorded the location of the animals on the AIM system.

The Department has provided this Office with an account of the searches conducted in response to the applicant's request. In short, notwithstanding its narrow interpretation of the scope of the request, the Department stated that consideration was given to all records relating in any way to the movement in question and electronic and manual searches were conducted in locations where one would expect to find records relevant to the request. It stated that it contacted its National Beef Assurance Section, as all requests for compliance certificates must be submitted through that section, and was informed that no such certificates existed for the animals in question. It also carried out searches for electronic records on its Animal Health Computer System and its AIM system, and it also searched for hard copy correspondence and emails.

Essentially, the Department's position is that no further relevant records exist as it had no role in authorising the movement of the animals, and that the movement of the animals was not processed in the normal way through compliance certificates. Given the circumstances under which the cattle were moved and given also the Department's explanation as to its role in the matter, I am satisfied that the Department has conducted reasonable searches to locate relevant records in this case. I find, therefore, that the Department was justified in deciding that no further relevant records exist.

Section 37
The Department redacted certain information from the email records released under section 37(1) of the FOI Act. That section provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information of individuals other than the requester.

Personal information is defined at 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 Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition.

In my view, the release of the first two redactions on the first page of record 3 and the first redaction on record 5 would not involve the disclosure of personal information relating to a party or parties other than the applicant. I find, therefore, that section 37 does not apply to this information. I am, however, satisfied that the remaining redactions comprise personal information relating to parties other than the requester, and that section 37(1) applies.

There are some circumstances, provided for at section 37(2), in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) provides that a record which is otherwise exempt under section 37(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the parties concerned. Therefore, I find that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. The FOI Act acknowledges that there is a public interest in ensuring the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act, which makes clear that the release of records under FOI must be consistent with the right to privacy. The right to privacy has a constitutional dimension. 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 seems to me that the public interest in ensuring openness and accountability in relation to the Department's actions concerning the movement of the cattle in question has been served to a large degree by the release of the vast majority of the records at issue. It is not apparent to me that release of the withheld information would further enhance the accountability and transparency of the Department to any significant extent. In my view, the public interest in the release of the withheld records in this instance does not outweigh, on balance, the public interest in protecting the privacy rights of the individual(s) to whom the personal information contained in the records relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the Department was justified redacting the records apart from the first two redactions on the first page of record 3 and the first redaction on record 5.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I direct the release of the first two redactions on the first page of record 3 and the first redaction on record 5.

I affirm the Department's decision to refuse access to any further information under sections 15(1)(a) and 37(1) of the 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.

 


Stephen Rafferty
Senior Investigator