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

Case Number: 160341

Whether the Department was justified in refusing access to copies of the Temporary Veterinary Inspector panel listings for all active Meat Export Plants

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

On 12 January 2016, the applicant made a request for access to copies of the Temporary Veterinary Inspector (TVI) panel listings for all active Meat Export Plants as operated by the Department as part of its Meat Inspection Service. The Department refused the request on the ground that the records sought contain personal information relating to third parties. On 3 March 2016, the applicant sought an internal review of that decision, following which the Department upheld its original decision. The applicant sought a review by this Office of the Department's decision on 18 August 2016.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between the Department and the applicant as set out above, as well as to the communications between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue, copies of which were provided to this Office for the purpose of conducting the review.

Scope of Review

This review is concerned solely with whether or not the Department was justified in its decision to refuse access to the TVI panel listings sought.

Preliminary Matters

The FOI request in this case was made by the applicant on behalf of Veterinary Ireland, a representative body for Veterinary Inspectors. The applicant has indicated that he sought the information at issue so that Veterinary Ireland could act on behalf of its TVI members, as such lists were used to ascertain a TVI's officially listed position on a Meat Inspection Service Panel in order to resolve any conflicts between members or with the Department, as their employer. He stated that the information sought had previously been provided by the Department in 2006 and 2010 and that the lists had proved to be a key tool in maintaining productive industrial relations between TVIs and their employer.

There are two comments I would like to make in response to the point raised by the applicant. Firstly, section 13(4) provides that any reasons that a requester gives for a request must be disregarded, except in so far as they reflect or overlap with what may be regarded as public interest considerations, as will be discussed more fully below. Secondly, the fact that the Department previously issued information of a similar nature does not, of itself, provide a ground for arguing that it must now release the particular records sought.

I would also like to make a number of further comments before I address the substantive issue arising. It is important 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. Furthermore, it should also be noted that a review under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. Finally, section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought was justified.

Analysis and Findings

Section 37
The Department refused access to the records sought under section 37(1) of the FOI Act. That section, subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.

For the purposes of the Act, personal information is defined 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, including (iii) information relating to the employment or employment history of the individual, (v) information relating to the individual in a personnel record, and (xiv) the views or opinions of another person about the individual.

However, the Act also details certain information that is excluded from the definition of personal information, as follows:

"(I) in a case where the individual holds or held

(A) office as a director of,
(B) a position as a member of the staff of, or
(C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,"

(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service."

The Department has described the panel members as "contractors whose services the Department may opt to engage or not to engage." It stated that its Veterinary Inspectors-in-charge at each meat plant roster the panellists at the meat plants as and when required on the basis of seniority on the panel, availability and suitability, assessed on work performance. It stated that, in essence, work is offered to those on the panel on a top-down basis. It went on to explain that each day is taken separately so, for example, over the course of a year the top one third of each panel may be offered work every day, the middle third may be offered occasional work, while the bottom third may not be offered work at all.

Essentially, the listings comprise panels of TVIs that have been accepted by the Department as approved service providers. In my view, the fact that certain panellists may not be offered work does not alter the fact that they are included as approved service providers. As such, it seems to me that the details of the names of the panellists on the lists are specifically excluded from the definition of personal information by virtue of exclusion (II) above. I find, therefore, that the Department was not justified in refusing access to the names of the panellists under section 37(1).

However, that is not the end of the matter, as disclosure of the lists in their entirety would also disclose the position of each TVI on those lists. The Department stated that TVIs are appointed to the panel on a first come, first served basis by application to the Department and on satisfactory completion of a training course. It also stated that the order of the panel is not merit based. If this was the only basis on which TVIs were positioned on panels, then I would see no reason for arguing that the disclosure of the position of each TVI would disclose personal information relating to the TVIs. However, the Department further stated that maintaining one's position of seniority on the panel is subject to change if the service provided is deemed to be unsatisfactory or did not meet the required safety standards, or if the TVI persistently turned down shifts.

In such cases TVIs may be moved to a lower position on the panel. It also stated that, effective from late 2011, it is not accepting applications for approval to be engaged as TVIs until further notice. It seems to me, therefore, that a comparison of lists over time would allow for the identification of panellists who had moved down in position. This, in turn, would allow for inferences to be drawn as to the views of the Department on the adequacy of the service provided. I find, therefore, that the disclosure of the position of each individual on the panel would involve the disclosure of personal information relating to that individual and that section 37(1) applies.

Section 37(2) provides the section 37(1) does not apply in certain circumstances, including where the individual to whom the information relates consents to its disclosure. The applicant has not claimed that he has the consent of all of the panellists. I find that section 37(2) does not apply. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

The applicant has argued that it would be to the benefit of members for Veterinary Ireland to have the details of the panellists so that the organisation can act on their behalf. However, I note the Department's contention that not all of the TVIs listed are members of Veterinary Ireland. In any event, it seems to me that it is not necessary for Veterinary Ireland to have access to the lists to allow it to act on behalf of its members. I find that section 37(5)(b) does not apply.

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates. In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner (the Rotunda judgment) (available at www.oic.gov.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).

In his application for internal review, the applicant argued that there was a public interest in ensuring good working relationships between the Department and Veterinary Ireland, in its representation of its members, so that it can act on behalf of its members. It seems to me that this is, in essence, a private interest of Veterinary Ireland. In any event, it appears that not all of the TVIs on the lists are members of Veterinary Ireland. I would add that I can see no reason why the Department would not be prepared to disclose to individual TVIs their position on any particular list so that the TVIs can seek the assistance of Veterinary Ireland if they wish.

The applicant also argued that the lists of TVIs engaged to perform official controls under EU legislation should be available to the public in the interest of openness and transparency. It seems to me that this public interest will be served by the release of the names of those on the lists. Nevertheless, I accept that the disclosure of the position of each TVI on the lists would further enhance the openness, transparency, and accountability of the Department in how it operates the lists.

On the other hand, however, 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). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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. I am also cognisant of the fact, as noted above, that disclosure of a record under FOI is, in effect, disclosure to the world at large, given that the Act places no constraints on the potential uses to which records released under FOI may be put.

In my view, the disclosure of the position of each and every TVI on the lists would not significantly add to the public interest in enhancing the openness, transparency, and accountability of the Department in how it operates the lists. As such, I am of the view that the public interest in disclosing the positions of each TVI on the lists does not, on balance, outweigh the public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

 

Section 36(1)
In a submission to this Office, the Department also argued that the disclosure of an individual's position on a panel is commercially sensitive and the section 36(1) applies. It did not argue that the disclosure of the names of those on the panels is commercially sensitive. However, as I have already found that the disclosure of the position of each individual on the panel is exempt from release under section 37(1), I do not need to consider the applicability of section 36(1) to that information.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I direct release of the names of the panel members but not the order of their placement on the panels.

 

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