BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Case Number: 160356

Whether the IGB was justified in its decision to refuse access to details of greyhounds that tested positive for prohibited substances between 2013 and October 2015 under section 37 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

On 17 May 2016, the applicants requested details of the names of the greyhounds that tested positive for prohibited substances during racing for "competitions valued €2,000 and for the major classics" between 2013 and April 2016.

In its decision of 4 July 2016, the IGB informed the applicants that records of adverse analytical findings have been published on its website since the introduction, in October 2015, of the Greyhound Industry (Racing) (Amendment) (No. 2) Regulations 2015 (S.I. 396 of 2015) and that this includes both (i) where positive tests for prohibited substances were proven and there was a case to answer and (ii) where there was no case to answer. I understand that a finding of "no case to answer" means that there was no finding of fault or sanction imposed by the IGB Control Committee following its investigation, notwithstanding a positive test for prohibited substances. It stated that prior to the commencement of S.I. 396 of 2015 and the commencement of the publication of adverse analytical findings on the IGB website, positive tests of those found to have a case to answer were published on the IGB website and in the Sporting Press but that positive tests where it was found that there was no case to answer were not published.

The decision maker referred to a telephone conversation of 27 June 2016 with the applicants when they apparently clarified that they were seeking (i) details of all cases involving positive results, including where there was a finding of no case to answer for the dates specified including the period before the 2015 Regulations came into effect and (ii) details of any cases that have tested positive that are still being processed for dates before the publication Regulations came into effect.

The IGB decided to refuse access to the details of those greyhounds that tested positive from 2013 to September 2015 where there was no case to answer and to details of those greyhounds that tested positive during that period and that are still being processed, on the ground that the disclosure of the information sought would involve the disclosure of personal information relating to third parties.

The applicants sought an internal review of that decision on 13 July, 2016 but, although it would appear that an internal review was carried out, the decision reached at internal review was not communicated to the applicants within the relevant time limits. The applicants therefore applied to this Office for a review on the expiry of the time allowed for receipt of an internal review decision. The internal review decision of the IGB affirmed its earlier decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting this review I have had regard to the correspondence between the applicant and the IGB, and to correspondence between this Office and both the applicant and the IGB on the matter.

Scope of the Review

Essentially, the IGB's position is that it has always published details of positive tests where it was found by its Control Committee, following its investigative and adjudication processes, that there was a case to answer and that following the introduction of S.I. 396 of 2015, details of all positive tests are published regardless of whether or not the Committee found that there was a case to answer.

Accordingly, this review is concerned solely with whether the IGB was justified in refusing access, under section 37 of the FOI Act, to the names of those greyhounds that tested positive for a prohibited substance between 2013 and 1 October 2015 and where it was found by the IGB that there was no case to answer, or where an investigation is ongoing.

Analysis and Findings

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the records sought 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 FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xiii) information relating to property of the individual (including the nature of the individual's title to any property)".

I am satisfied that the disclosure of the names of the greyhounds in question would readily allow for the identification of the respective owners. I note, for example, that owner details are printed in race programmes. Given the explanation provided by the IGB of the practices that existed concerning the publication of details of positive tests prior to the introduction of S.I. 396 of 2015, I also accept the IGB's argument that details of the names of those greyhounds that tested positive for a prohibited substance between 2013 and 1 October 2015 and where it was found by the IGB that there was no case to answer, or where an investigation is ongoing, is information that is held by it on the understanding that it would be treated by it as confidential. Furthermore, I am satisfied that the disclosure of the names of the greyhounds would involve the disclosure of information relating to property of identifiable individuals. I find, therefore, that the disclosure of the names of the greyhounds would involve the disclosure of personal information relating to individuals other than the applicants and that section 37(1) applies.

The effect of section 37(1) is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. Having carefully considered each of those provisions as they may relate to this case, I am satisfied that no such circumstances arise. I note, in particular, that section 37(2)(c) serves to disapply the section 37(1) exemption where information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. I fully accept that the details of greyhounds that tested positive, regardless of whether or not the IGB found there to be a case to answer, are now publicly available following the introduction of S.I. 396 of 2015. However, this is not, in my view, the same kind of information that is sought in this case. The information sought concerns details of greyhounds that tested positive before the introduction of the Regulations. Such information is not publicly available.

Section 37(5) provides that access to the personal information of a third party may 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.

No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the third parties concerned, nor do I consider this to be the case. I therefore find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.

In this case, the applicants essentially argued that there is a public interest in breeders knowing that the greyhounds offered for stud purposes are honest and running without the help of prohibited substances to protect their breeding stock. The IGB agreed that there is a significant public interest in the protection of greyhound breeding stock and that this very issue is at the heart of the work of the IGB as the regulatory body for the greyhound industry. The FOI Act recognises a strong public interest in enhancing the openness, transparency and accountability of public bodies in the performance of their functions. Indeed, the IGB acknowledged that the public interest in the release of details of positive testing necessitated the implementation of S.I. 396 of 2015.

As such, it seems to me that the public interest in enhancing the transparency and accountability of the IGB in the performance of its functions relating to its regulation of the industry and to the use of banned substances has been served to a significant degree following the introduction of S.I 396 of 2015, and before that by the release of details of the greyhounds that tested positive and where the IGB found there to be a case to answer. The question I must consider, therefore, is whether the public interest in further enhancing that transparency and accountability by releasing the details sought in this case is sufficiently strong to outweigh, on balance, the privacy rights of the individuals to whom the information relates.

In my view it does not. In holding this view, I am cognisant of the fact that details sought concerns owners of greyhounds where it has either been found that there was no case to answer or where no such finding has yet been made. Notwithstanding the fact that details are now routinely published of positive tests, regardless of whether or not there is a case to answer, the fact remains that the owners of the greyhounds in question in this case were legitimately entitled to expect that their personal information would be treated by the IGB as confidential in circumstances where it had not been found that there was a case to answer.

I am also cognisant of the fact that 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 find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the IGB was justified in its decision to refuse access, under section 37(1), to the names of those greyhounds that tested positive for a prohibited substance between 2013 and 1 October 2015 and where it was found by the IGB that there was no case to answer, or where an investigation is ongoing.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the IGB.

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