Whether the FSAI was justified in refusing access to copies of State Laboratory Certificates of Analysis for a named CBD product under sections 30(1)(a), 32(1)(a) and 41(1) of the FOI Act

 

OIC-108282-C6S2R2

 

Background

 

In a request dated 18 March 2021, the applicant sought access to various records held by the Food Safety Authority of Ireland (the FSAI) relating to a specified cannabidiol (CBD) product. Following correspondence between the parties, the applicant refined his request and sought copies of State Laboratory Certificates of Analysis held by the FSAI for the named products from January 2018 to March 2021.

 

On 18 May 2021, the FSAI refused access to all 12 records it identified as relevant to the request under sections 30(1)(a), 32(1)(a) and 41(1) of the FOI Act. The applicant sought an internal review of that decision, following which the FSAI affirmed its refusal of the request. On 10 June 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 FSAI. 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 the Review

 

This review is confined to the question of whether the FSAI was justified in refusing access to 12 certificates of analysis for the named CBD product under sections 30(1)(a), 32(1)(a) and 41(1)(a) of the FOI Act.

 

 

 

Analysis and Findings

 

Section 41: Enactments relating to non-disclosure of records

As section 41(1) is a mandatory exemption, I will examine its applicability first. It provides that a request shall be refused if –

 

1. 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
2. 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 essence, 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 FSAI cited Article 8 of Regulation (EU) 2017/625 of the European Parliament and of the Council of 15 March 2017 (the Official Controls Regulation) and Article 18 of the European Union (Official Controls in Relation to Food Legislation) Regulations 2020 (S.I. No. 79/2020). The Official Controls Regulation was transposed into Irish law by S.I. No. 79/2020. Neither the Official Controls Regulation nor S.I. No. 79/2020 are listed in Schedule 3 to the FOI Act.

 

In its decision on the request, the FSAI described the records at issue as certificates of results of official control tests carried out on food product placed on the Irish market. In its submissions to this Office, it explained that they comprise certificates of analysis issued by an approved examiner on samples of CBD oil taken by an authorised officer and analysed in an official laboratory in accordance with the Official Controls Regulation.

 

Article 8 of the Official Controls Regulation provides for the confidentiality obligations of competent authorities as follows:

“1. Competent authorities shall ensure that, subject to paragraph 3, information acquired when performing their duties in the context of official controls and other official activities is not disclosed to third parties where, under national or Union legislation, that information is, by its nature, covered by professional secrecy.

2. Paragraph 1 shall also apply to organic control authorities, delegated bodies and natural persons to which specific official control tasks have been delegated and to official laboratories.

3. Unless there is an overriding public interest in the disclosure of information covered by professional secrecy as referred to in paragraph 1, and without prejudice to situations where disclosure is required by Union or national legislation, such information shall include information whose disclosure would undermine:

(a) the purpose of inspections, investigations or audits;

(b) the protection of commercial interests of an operator or any other natural or legal person; or

(c) the protection of court proceedings and legal advice.

4. The competent authorities, when determining whether there is an overriding public interest in the disclosure of information covered by professional secrecy as referred to in paragraph 1, shall take into account inter alia the possible risks to human, animal or plant health, or to the environment, and the nature, severity and extent of such risks.

5. The confidentiality obligations provided for in this Article shall not prevent the competent authorities from publishing or making otherwise available to the public information about the outcome of official controls regarding individual operators, provided, without prejudice to situations where disclosure is required by Union or national legislation, that the following conditions are met:

(a) the operator concerned is given the opportunity to comment on the information that the competent authority intends to publish or make otherwise available to the public,      prior to its publication or release, taking into account the urgency of the situation; and

(b) the information which is published or made otherwise available to the public takes into account the comments expressed by the operator concerned or is published or released together with such comments.”

 

Article 18 of S.I. No. 79/2020 states:

 

“It is an offence for an employee or agent of the Authority, the official agency, an official laboratory or a delegated body to disclose information acquired when undertaking official controls or other official activities which by its nature is covered by professional secrecy, in contravention of Article 8 of the Official Controls Regulation.”

 

In its submissions, the FSAI explained that an enforcement process is ongoing in relation to the named CBD product to which the 12 records relate and this enforcement process may lead to legal proceedings. It referred to articles 8(3) and 8(4) of the Official Controls Regulation which provide that information acquired in the course of official controls and other official duties can be released to third parties only when there is an overriding public interest in its disclosure. The FSAI’s view is that there is no overriding public interest in the release of these records which constitute information acquired by an enforcement officer in the performance of his/her duties and as such the records are covered by ‘professional secrecy’ in article 8(1). It said there is no public health concern in this case and that release of the certificates of analysis at this point could undermine its enforcement investigation and potential court proceedings that remain an option on conclusion of the investigation. It submitted that the public interest would be best served by the completion of the lawful investigation under these laws that are designed to protect public health and public interests.

 

The FSAI was asked to comment on article 8(5) of the Official Controls Regulation which was not addressed in its original submission. In response, it stated that Article 8(5) is an enabling provision to permit competent authorities to make information about ‘the outcome of official controls regarding individual operators’ public, subject to certain conditions. It submitted that it did not regard laboratory certificates of analysis (the records in question) to be ‘the outcome of official controls’. Rather, they constitute just one element of the process and must be combined with other elements (for example inspection of an establishment, production controls, food labelling) for an ‘outcome’ to be achieved. I accept this point that the records involved do not constitute ‘the outcome of official controls’ and that article 8(5) does not apply.

 

In his submissions, the applicant argued that the FSAI has neglected to protect the public interest, pointing to the length of time that its investigation has taken, and that, in these circumstances, the records should be released so that the public can make informed decisions about whether or not to purchase the products in question.

 

The FSAI provided details to this Office of its efforts to bring the issue to a conclusion and some of the difficulties that it has encountered that have meant it has taken longer than anticipated. It stated that once a conclusion is reached, the public will be made aware of the issues at stake but to release the records any earlier would undermine the enforcement process.

 

Having also considered recital 31 of the Official Controls Regulation which sets out the intention of the legislation as regards the confidentiality obligations of the competent authorities, I am satisfied that the records at issue constitute information acquired during the performance of official controls covered by professional secrecy. As per Article 8(3) I accept the FSAI’s argument that the information covered by the request is information whose disclosure would undermine the purpose of inspections, investigations or audits. There is no suggestion that the CBD product(s) involved may present a risk for the health of the general public, and I also accept the FSAI’s argument that there is no overriding public interest to justify the disclosure of the records at issue while an investigation remain ongoing.

 

In these circumstances, I find that the disclosure of the records at issue is prohibited by Article 8 of the Official Controls Regulation and, in turn, by Article 18 of S.I. No. 79/2020. I find, therefore, that section 41(1)(a) applies and that the FSAI was justified in refusing access to the records sought pursuant to that provision. As I find the records to be exempt from release under section 41(1)(a) of the FOI Act, I do not consider it necessary to determine whether and to what extent the other claimed exemptions may also apply.

 

 

Decision

 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the FSAI to refuse access, under section 41(1)(a) of the FOI Act, to 12 certificates of analysis for the named CBD product.

 

 

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