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Whether the Board was justified in its decision to refuse access to three records, or parts thereof, consisting of board minutes and an "audit of dogs" under sections 22(1)(a), 27, 28(1), 30 and 31 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 22 July 2013, the applicant submitted a request to the Board for a copy of the audit of dogs referred to at meetings of the Board in 2011 and for copies of all Board minutes from 2012 and 2013. As the Board failed to issue a decision within the required time, the applicant submitted an application for internal review on 30 August 2013 on the ground that his request was deemed to be refused under section 41 of the FOI Act.

Following considerable further delay, the Board's internal reviewer issued his decision on 17 January 2014, granting access in part to the records sought. On 25 June 2014, the applicant sought a review by this Office of the Board's decision. The applicant limited the scope of his application for review to the information redacted from the Board minutes dated 28 February 2013 and 28 March 2013, and to the audit of dogs.

I note that Mr. Niall Mulligan of this Office set out his views in relation to the exemptions claimed by way of email to the Board dated 1 September 2014. The Board offered no further submissions or correspondence to this Office. Mr Mulligan also invited submissions from a certain third party whose interests are potentially affected by the release of parts of the records. The third party's submission was received on 24 November 2014.

In conducting my review, I have had regard to the Board's decision on the matter and its communications with this Office, to the applicant's communications with this Office and the Board, as well as to the submission made by a third party. I have also had regard to the provisions of the FOI Act and to the contents of the records in question, a copy of which have been provided to this Office for the purpose of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matters

The minutes dated 28 March 2013 contain, at pages 8 and 9, a reference to arrangements between the Board and a third party. The Board refused access to this element of the record for reasons including that "it contains commercially sensitive information". The Board's decision did not cite a particular exemption in this regard. In the course of this review, Mr. Mulligan took the view that the material contained therein may be commercially sensitive, within the meaning of section 27 of the FOI Act, but may be subject to release in the public interest pursuant to section 27(3) of the Act. Therefore, the third party was consulted as to its views and I will have regard to same in reaching my decision.

The Board's submission also contains a number of references to the Data Protection Acts as justifying a refusal to release records pursuant to the FOI Act. However, section 1(5)(a) of the Data Protection Act 1988 (as amended) provides that:-

"A right conferred by this Act shall not prejudice the exercise of a right conferred by the Freedom of Information Act 1997."

Accordingly, I find that the Board is not entitled to refuse to grant access to any parts of the records at issue solely on the ground that release of the information at issue "could be a breach of the Data Protection Act".

The Board's decision and submissions cited sections 23 and 28 of the FOI Act only. However, the submission furnished by the Board to this Office on 13 August 2014 referred also to sections 21(1)(a), 30 and 31 of the FOI Act, as well as "commercial sensitivity" and "legal privilege". I propose to consider the applicability all of relevant exemptions in this decision.

Scope of the Review

This review is concerned solely with the question of whether the Board was justified, under sections 21(1)(a), 22(1)(a), 23, 27, 28(1), 30 and 31 of the FOI Act, in deciding to grant only partial access to the Board minutes dated 28 February 2013 and 28 March 2013 and in deciding to refuse access to the audit of dogs.

Analysis and Findings

Section 34(12)(b) of the FOI Act provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This means that the onus is on the Board of satisfying this Office that its decision to withhold the relevant information at issue was justified.

Section 21(1)(a)
Section 21(1)(a) of the FOI Act provides for the refusal of a request where the public body considers that release of the record sought could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for their conduct.

In arriving at a decision to claim a section 21 exemption, this Office considers that a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The Board submitted that this exemption applies to item 6(c) of the Board minutes dated 28 February 2013 and to item 11(d) of the minutes dated 28 March 2013. I am not satisfied in either instance that the Board has demonstrated how a prejudice could reasonably be expected to arise out of the release of the relevant information. I find, therefore, that section 21(1)(a) does not apply in relation to either item.

Section 22(1)(a)
Section 22(1)(a) provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. This Office accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication:-

confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The mere fact of there being a possibility or even a likelihood that a record may be produced or relied upon in the course of litigation is not of itself sufficient to render that record subject to legal professional privilege. Litigation privilege applies only in circumstances where the "dominant purpose for the document coming into existence [was for] the purpose of preparing for litigation then apprehended or threatened." (see Silver Hill Duckling Ltd. v. Minister for Agriculture [1987] IR 289 and Gallagher v. Stanley [1998] 2 IR 267).

The Board's submission was to the effect that the redacted information contain comments that were made in the context of possible litigation and that the matters discussed were the subject of ongoing legal review of a statutory racing regulatory matter.

Application of section 22(1)(a) to the Board minutes dated 28 February 2013
The Board claimed that this exemption applies to part of the information redacted from item 1, items 2(b), 6(a) and 6(c) of these minutes. However, the record does not set out legal advice from a professional legal advisor, nor was it created for the dominant purpose of pursuing litigation. I therefore find that section 22(1)(a) of the FOI Act does not apply to this information.

Application of section 22(1)(a) to the Board minutes dated 28 March 2013
In relation to these board minutes, the board claimed that "legal privilege" applies to items 1, 2, 3 and 11(d). Items 2 and 3 record the advice given to the board by a professional legal advisor, who attended the Board meeting, as well as some discussion of issues arising out of that advice. I find that legal advice privilege attaches to these sections of the minutes, and that they are therefore exempt under section 22(1)(a) of the FOI Act.

Item 1 refers to the need to take legal advice in relation to a particular matter. Item 11(d) relates to regulatory matters. However, the record does not set out legal advice from a professional legal advisor, nor was it created for the dominant purpose of pursuing litigation. Therefore, I find that section 22(1)(a) does not apply to this information.

Section 23
Section 23(1)(a) of the FOI Act provides that access to records may be refused in circumstances where their release may reasonably be expected to prejudice or impair certain specified functions, generally related to law enforcement and public safety.

The Board invoked section 23 in relation to the audit of dogs only. This is a record containing the names and addresses of the owners of greyhounds which had been tested for banned substances, as well as the names of the animals and details of the track and date at which they had been tested. In his request to the Board, the applicant indicated that he would be satisfied to receive such information with redactions to the name of the animal, trainer and track details. While the applicant indicated that he wished to receive information relating to the nature of the substance detected, I note that the record contains no such references.

The Board argued for the withholding of the audit of dogs under subsections (i) (ii) (iii) and (iv) of section 23(1)(a) on the basis that the release of the record could "prejudice fair procedures and the enforcement of the law". However, the Board has not identified a particular function which might be prejudiced or impaired by the release of the record. Neither has the case been made by the Board that any prejudice or impairment could reasonably be expected to arise. The Board merely states that "the law of fair procedures is a fundamental principle of the Irish Constitution ... the information requested would serve the purpose, if released, of bypassing fair procedures." In my view, the Board has not justified its decision to refuse access to the record under section 23 and I find, therefore, that section 23(1)(a) does not apply.

Section 27
The Board refused access to certain information on the ground that it is commercially sensitive. In my view, section 27(1)(b) is potentially applicable. That section provides for the refusal of financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 27(3) qualifies this exemption by providing that a record to which 27(1) applies may be released if the public interest in its release outweighs, on balance, the public interest in withholding it.

Application of section 27 to the Board minutes dated 28 February 2013
The Board claimed that information contained the first paragraph of item 1 and at item 2(b) of these minutes is "commercially sensitive".

Item 1 at its first paragraph relates to the proposed appointment of an interim tote consultant. I am not satisfied that the Board has demonstrated how the release of the information in question could reasonably be expected to give rise to one or more of the harms identified in section 27(1)(b). Therefore, I find that section 27(1)(b) of the FOI Act does not apply to this information.

Item 2(b) of the minutes contains a discussion of negative publicity around the greyhound industry. While it possible that the release of this material might cause embarrassment to the Board, this alone would not be sufficient to satisfy the requirements of section 27(1)(b). The Board has not demonstrated how the release of the information in question could reasonably be expected to give rise to one or more of the harms identified in section 27(1)(b). Therefore, I find that section 27(1)(b) of the FOI Act does not apply to this information.

Application of section 27 to the Board minutes dated 28 March 2013
The Board claimed that item 12(i) of these minutes contains commercially sensitive information, the release of which could be commercially damaging to the third party to whom the information relates. As outlined above, Mr Mulligan of this Office invited and received submissions from that third party. In essence the third party's submission described the background to the financial arrangements described in the relevant part of the record, and provided a more up-to-date description of its current financial position. It did not attempt argue that the release of the information might give rise to one or more of the harms identified in section 27(1)(b).

Based on the submission received from the third party, it would appear that there is little or no commercial sensitivity to this information at the present time. Furthermore, I am not satisfied that the Board has demonstrated how the release of the information in question could reasonably be expected to give rise to one or more of the harms identified in section 27(1)(b). Therefore, I find that section 27(1)(b) of the FOI Act does not apply to this information.

Section 28
Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information of an individual other than the requester. The Board referred to purported "breach[es] of the Data Protection Act" as a reason for refusing access to various elements of the records at issue. I have set out earlier in the preliminary matter to this decision the basis upon which I find this argument to be misconceived. It would appear to me that the Board's argument in these instances relates to the personal information of third parties. I will therefore consider the relevance of section 28(1) to the information in question.

Application of section 28 in relation to the audit of dogs
As I have outlined above, this record contains the names and addresses of the owners of greyhounds which had been tested for banned substances, as well as the names of the dogs and details of the track and date at which they had been tested. I am satisfied that disclosure of the names and addresses of the owners and the names of the dogs would involve the disclosure of personal information relating to the dog owners. I find, therefore, that section 28(1) applies to such information.

While section 28(2) provides that section 28(1) does not apply in certain circumstances, I am satisfied that no such circumstances arise in this case.

Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) on balance, 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. I am satisfied that the release of the personal information at issue in this case would not benefit the individuals concerned and I find, therefore, that section 28(5)(b) does not apply.

On the matter of where the balance of the public interest lies as provided for in section 28(5)(a), there is a significant public interest in ensuring openness, transparency and accountability of public bodies. On the other hand, the FOI Act itself recognises a public interest in protecting privacy rights. Both the language of section 28 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") recognise this public interest. The right to privacy also has a constitutional dimension. Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. 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 the right to privacy. In my view the public interest in protecting the right to privacy is a strong public interest.

In the circumstances, while I am of the view that there is a particular public interest in openness, transparency and accountability in relation to the Board's handling of matters relating to dogs being tested for banned substances, I am satisfied that, on balance, the public interest in the release of the information at issue does not outweigh the right to privacy of the individuals concerned, and I find that section 28(5)(a) of the FOI Act does not apply.

In relation to the date and track details, it does not appear to me that the disclosure of such information would be sufficient to allow the owners of the animals to be identified. Multiple races take place at each track when it is operating, involving anything up to sixty dogs in total. I therefore find that the name of the track and the date of the meeting contained in the audit of dogs is not exempt from release under section 28.

Application of section 28 to information relating to board members and employees
Both sets of minutes contain a number of references to the names of board members and employees. It would appear to be the Board's argument, referring in error to the Data Protection Acts, that these names constitute exempt personal information within the meaning of section 28(1) of the FOI Act.

Section 2 of the FOI Act generally defines personal information as information relating to an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. However, certain classes of information are excluded from the definition.

Section 2(I) excludes:

"in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public 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"

Section 2(II) excludes:

"in a case where the individual is or was providing a service for a public body under a contract for services with the body, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any from by the individual in the course of and for the purposes of the provision of the service"

Having considered the contents of the Board minutes, I am satisfied that, with the exception of part of item 1 of the minutes dated 28 March 2013 which I will deal with below, the information relating to the Board members and employees relates to the functions of the roles held by those individuals and the performance of those functions and that it is of a type that is excluded from the definition of personal information for the purposes of the FOI Act. I find, therefore, that section 28(1) does not apply to the information relating to the board members and employees contained in the minutes.

Application of section 28 to the Board minutes dated 28 February 2013
As previously outlined, I take the Board's "Data Protection" arguments in support of its refusal of access to information contained at items 1, 5 and 6(c) of these minutes as referring to the personal information of third parties.

Item 1 does not contain any personal information of individuals other than Board members or employees. I therefore find that section 28(1) does not apply in this instance.

Item 5 contains the name of counsel who had provided an opinion to the Board. The definition of personal information contained at section 2 of the FOI Act includes information relating to the employment of an individual. However, section 2(II) of the Act excludes certain information relating to services rendered where an individual provides a service for a public body.

In this case, it is not clear that a contract for services existed between the individual in question and the Board as it is often the case that any such contract for services would be between the solicitors and the client. However, even if no such contract for services exists in this case, the information at issue relates to the individual's professional activities. The Courts have considered the constitutional right to privacy in relation to business dealings in Caldwell v. Mahon [2007] 3 IR 542, where Hanna J stated that such a right operates at the "outer reaches of and at the furthest remove from the core personal right to privacy". McGovern J in Slattery v. Friends First Life Assurance Company [2013] IEHC 136 interpreted this statement as entailing that such a right "may readily be qualified by countervailing considerations."

Therefore, even if I were to find that the individual's name is personal information for the purpose of section 28(1) of the FOI Act, the public interest balancing test as set out in section 28(5)(a) would remain to be considered. There is a public interest in openness, transparency and accountability in the manner in which public bodies go about their business. I am satisfied that, if it is the case that the name of counsel is personal information for the purpose of section 28(1) of the FOI Act, the public interest in release outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, per section 28(5)(a) of the Act, and that this information should be released.

Item 6(c) contains the names of two individuals who were under investigation by the Board's Control Committee, as well as the name of a witness in proceedings of that body. I am satisfied that the names of these individuals are personal information for the purposes of the FOI Act and I find, therefore, that section 28(1) applies.

The public interest considerations applying to this information are identical to those set out above in relation to the audit of dogs earlier in this decision. On balance, I am again satisfied that the release of the information at issue does not outweigh the right to privacy of the individuals concerned, and that section 28(5)(a) of the FOI Act does not apply. I am also satisfied that the sections 28(2) and 28(5)(b) do not apply.

Application of section 28 to the board minutes dated 28 March 2013
The Board's submissions referred to "Data Protection" in relation to items 1, 2, 3, 11(d), 12(e) and 12(i). I have already found that items 2 and 3 of these minutes are exempt pursuant to section 22(1)(a) of the FOI Act, so it is unnecessary for me to consider the application of section 28(1) to those elements of the record.

Item 1, at the first paragraph of page 2 of the minutes, contains references to members of staff at the Board. The information at issue comprises a view expressed by a Board member concerning the staff members. I find that this information is personal information relating to those staff members and that it is exempt from release under section 28(1). I find that the public interest in release of the personal information contained at this item does not, on balance, outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

Item 11(d) refers to two individuals, one of whom is now deceased, while the other is a former employee of the Board, who is now employed by the Irish Coursing Club (ICC). In general, the entry relates to interactions between the board and the ICC around regulatory issues.

In relation to the former Board employee, having considered the content of the item, I am satisfied that the second paragraph of this item consists of "information relating to the office or position or its functions" while he was in that position. Having regards to the provisions of section 2(I) of the FOI Act, as set out above, I am satisfied that this information is not personal information within the meaning of section 28(1) of the FOI Act. I find, therefore, that section 28(1) does not apply.

In this item, both individuals are referred to in their capacity as officers of the ICC. The ICC is not a public body for the purposes of the FOI Act, and thus section 2(I) does not apply. Section 28(1) provides that the exemption for personal information relates equally to personal information relating to a deceased individual. The information relates to the employment of the individuals. Therefore, I find that section 28(1) of the FOI Act applies to this information.

Having so found, I must again consider the public interest in relation to this information. There is a public interest in openness, transparency and accountability of public bodies. Here, the Board was acting in performance of its public regulatory duties, conferred by statute. On the other hand, I must have regard to the right to privacy of the individuals concerned. In this instance, the individuals were acting in the course of their employment in senior positions with the controlling authority for coursing in the State, a body which also performs functions relating to the registration and identification of thoroughbred greyhounds. The names and roles of both individuals were openly published, both in ICC materials and elsewhere.

For these reasons, I find that the public interest in release of the personal information contained at this item outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld, and therefore that section 28(5)(a) of the FOI Act applies.

Item 12(e) contains details of an interest expressed that two named individuals would engage in a charitable arrangement. The expressed interest never materialised. I am satisfied that the information at issue comprises personal information relating to the two individuals concerned and I see no public interest in release that would outweigh, on balance, the privacy rights of the individuals concerned. I find, therefore, that this item is exempt from release under section 28(1).

I have considered item 12(i) earlier in this decision, finding that section 27 of the FOI Act does not apply. While the Board also cited "Data Protection" issues in relation to this information, it does not appear to me that this item contains the personal information of any identifiable individual. Therefore, I find that section 28(1) does not apply to this information.

Section 30
Section 30(1)(a) of the FOI Act, provides that a request may be refused where the record concerned contains information in relation to research being or to be carried out by or on behalf of a public body and disclosure of the information or its disclosure before the completion of the research would be likely to expose the body, any person who is or will be carrying out the research on behalf of the body, or the subject matter of the research, to serious disadvantage"

The Board claimed this exemption in relation to item 6(c) of the Board minutes dated 28 February 2013 only, which refers to a control committee case. The Board submits that it is "currently awaiting further opinion from industry experts before finalising the case". In the first instance, I am not satisfied the information in question can properly be said to relate to research. Nor am I satisfied that the Board has demonstrated that a "serious disadvantage" to it would arise from the release of the record. I therefore find that section 30(1)(a) does not apply to this information.

Section 31
Section 31 of the FOI Act provides for the refusal of a request under if the public body considers that:

(a) access to the record could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy,

(b) premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature, or

(c) access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.

Section 31 is intended to protect the financial and economic interests of the State and of public bodies in the broadest sense. Section 31(2) provides a non-exhaustive list of categories of information that may qualify for exemption, provided that the relevant test in section 31(1) is met, which in this case requires a showing of a reasonable expectation of a serious adverse affect. The onus is on the Board to identify any potential serious adverse effect on the financial interests of the State.

The Board claims this exemption in relation to item 6(a) of the board minutes dated 28 February 2013, items 11(d) and 12(e) of the board minutes dated 28 March 2013.

The Board has not made the case that the release of the information at issue would cause undue disturbance to business generally, or to any particular class of business, in this case the greyhound racing industry as a whole. Neither has it made the case that the release of the information would have a serious adverse effect on the financial interests of the State or give rise to an unwarranted benefit or loss to a person or class of persons. Accordingly, I find that section 31 does not apply.

Summary

In summary, I find that the Board was not justified in deciding to withhold certain of the information previously withheld and that the following information should be released:

Audit of Dogs
All information contained in the fourth column of this record, under the heading "Track".

Board minutes dated 28 February 2013
Items 1, 2, 3, 4, 5, 7, 8 and 9 should be released in full. Item 6 should be released to the applicant, subject to redaction at item 6(c) of the names of two parties involved in Control Committee cases, as well as the name of a witness in the second of these cases.

Board minutes dated 28 March 2013
Item 1 should be released, subject to the redaction of the first three lines on page 2. The title and first line of item 2 should be released, but all other information in that item of the minutes should be redacted. The title and final two paragraphs of item 3 should be released, with the remaining information in that item of the minutes to be redacted. Items 4 through 12 should be released with the exception of item 12(e).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of Board in this case and direct the release of the records at issue, subject to redactions in the manner set out in this decision.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator