Whether the HSA was justified in refusing access to information identifying meat processing plants the subject of previously released inspection reports

2 July 2021

Background

This request has its background in the applicant’s earlier FOI request to the HSA of 13 July 2020 and his ensuing application for review to this Office (Case No. OIC-96846-H4H6M8). That review concerned the HSA’s decision to fully withhold all Covid-19-related inspection reports of what can be generally referred to as meat processing plants (MPPs). The HSA’s decisions included a general schedule of the records, which included the dates of each inspection report. During the review, the HSA agreed to release such reports subject to the redaction of personal information and any details that could identify the MPPS, including the dates of the inspections. It renumbered and rescheduled the records such that the dates of the inspections could not be arrived at by reference to the earlier schedule. On 24 November 2020, following receipt of the redacted reports, the applicant withdrew his application for review to this Office.

On 10 December 2020, the applicant made a fresh FOI request to the HSA for “the names, dates and locations for each of the meat inspection reports” released further to the above. The HSA’s decision of 13 January 2021 refused the request under section 37 of the FOI Act (personal information). The applicant sought an internal review on 20 January 2021. The HSA’s internal review decision of 11 February 2021 affirmed its refusal of the request. In addition to section 37, it relied on sections 30(1)(a) (investigations/procedures for inspections), 32(1)(a)(i) (investigation of offences), 32(1)(a)(ii) (enforcement of any law), 32(1)(a)(iii) (procedures for ensuring the safety of the public) and 36(1)(b) (commercially sensitive information) of the FOI Act. On 16 February 2021, the applicant applied to this Office for a review of the HSA’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the HSA and the applicant. I have also examined the records at issue and had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the HSA’s decision on the applicant’s request of 10 December 2020 was justified under the FOI Act. The details that are covered by my review are as follows: names and addresses of the inspected MPPs, dates of inspections and for receipt of responses to issues raised, and names of MPP staff. I also note that one of the records released does not on its face appear to relate to a Covid-19-related inspection (to avoid any doubt on the matter, it does not relate to any specific work-place incident); nonetheless, as it was one of the records partially released further to the settlement of the earlier review, it is covered by the applicant’s request.

However, the request does not seek any other material such as occasional words and sentences that were redacted from some of the records, and phone numbers and email addresses for HSA inspectors that were redacted from each report. My review does not cover these details, accordingly. Neither does it extend to any other matter, including any assessment of the HSA’s performance of its functions or the compliance by inspected workplaces with health and safety or public health legislation/guidelines.

Findings

The nature of the withheld details

The HSA says that inspection dates can be cross referenced with the extensive media coverage of outbreaks and related issues, such that the relevant MPP could be identified. I accept its position in this regard. I also accept that disclosure of the response dates can similarly be cross referenced to enable identification of the relevant premises. The HSA addresses the names of MPP employees only in the context of section 37 of the FOI Act. In any event, I accept that the disclosure of MPP employee names, in addition to the material already released from the reports and/or other details in the public domain, can itself serve to identify their employer.

In summary, I accept that release of the various withheld details would lead to the identification of the relevant MPPs. 

Summary of the HSA’s arguments

The HSA carried out the inspections to which the records relate as part of its participation in local and national Covid-19 Outbreak Control Teams (OCTs), at the request of and further to information provided to the HSA by the public health authorities. As part of the National Standing Oversight Committee (NSOC), it is also one of the enforcement agencies across the State checking compliance with guidelines and taking action where necessary. The emphasis across all enforcement agencies is on assisting employers to comply with Covid-19 guidelines in the first place.

Broadly speaking, the reports contain similar information regarding operational and health and safety matters and compliance. However, the issues found and remedial actions required are specific to each MPP. Some MPPs may not be subject to any further interventions by the HSA. In others cases, the HSA may need to re-inspect or take higher levels of enforcement such as issuing improvement or prohibition notices or bringing criminal prosecutions.

MPPs operate in a highly competitive market. Disclosing the identities of the operations to which the records relate into the public domain could impact on the reputation of those businesses and potentially result in the withdrawal of business by their customers. 

There is a public interest in ensuring the safety of workers and the public, and in MPPs being able to engage fully in the inspection process without fear of suffering commercially as a result and in preserving rights to privacy. Finally, there is a public interest in the public being able to exercise their rights under the FOI Act and knowing how the HSA discharges its functions and being able to decide if it is doing so properly.

Summary of the applicant’s arguments

Inspection reports are published routinely for many institutions and workplaces, including healthcare facilities, nursing homes, crèche facilities, direct provision centres, schools, prisons and mental health facilities. The Information Commissioner has repeatedly found that such reports should be published, including the identities of the inspected entities. The decisions in Case Nos 020533 and 000238, which respectively directed the release of nursing home and school inspection reports, are of particular note and the Information Commissioner has commented on their importance. The media regularly comment on inspection reports and inspected facilities continue to cooperate with such investigations despite their names being published. It is likely that naming the facilities improves adherence to guidelines and motivates service providers to bring their premises up to standard.

Outbreaks of Covid-19 in MPPs resulted in restrictive measures being introduced for more than 400,000 people in Counties Kildare, Laois and Offaly, with enormous impacts on their social and economic well-being, their businesses and the wider population. Outbreaks of Covid-19 in MPPs around Ireland continue to be a major source of infection risk to the community.

The applicant also states that it is impossible to overstate the public interest in the reports being released in full, so that the general public can be satisfied that the inspection regime is fit for purpose and that MPPs are doing everything in their power to contain Covid-19, and that the public knows what steps are being taken to address the outbreaks. The HSA is fully subject to FOI and Government would have legislated appropriately if it felt that the HSA inspection regime should be protected from public scrutiny. The HSA should release these reports in the same way as do other State agencies with similar inspection roles.

Section 36(1)(b) – commercially sensitive information

Having regard to the HSA’s arguments and the nature of the information at issue, it seems to me that section 36(1)(b) is the most appropriate provision to consider at the outset. Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The argument that different types of inspected entities have continued to cooperate with investigations generally, despite their names being published, is not relevant to my consideration of section 36(1)(b).

The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption.  However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

One report appears to concern an inspection arising from or regarding a non-Covid-19 related matter. Some are entirely concerned with Covid-19 related issues and the rest are primarily so, with observations on other health and safety matters noted. All reports make various recommendations arising from the matters observed. I have no reason to disagree with the HSA’s views regarding the nature of the market in which MPPs compete. In all of the circumstances, I accept that disclosing the identities of the MPPs as the particular inspected entities to which the various observations and recommendations relate is information that could impact on the reputations of those MPPs. I accept that disclosure of the identifying details could prejudice the competitive position of the MPPs in the conduct of their business. I find that section 36(1)(b) applies.

Section 36(2) - exceptions to section 36(1)

Section 36(2) provides for a number of exceptions to section 36(1). In particular, section 36(2)(b) provides that a record to which section 36(1) applies shall be released where information of the same kind as that contained in the record in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public. Although the applicant does not specifically refer to this provision, he argues that inspection reports are published by other FOI bodies. However, I do not consider that the publication by various other FOI bodies of differing types of inspection reports is a sufficient basis on which I can direct the HSA to grant access to the particular details at issue in this case under section 36(2)(a). I am satisfied that none of the other exceptions are relevant in this case and the applicant has not argued that they are relevant.

Section 36(3) - public interest

Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. That section recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. Amongst other things, it found as follows:

“The public interest engaged … cannot be the general public interest in disclosure and transparency in public undertakings…

[Section 36(1)] recognises there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request…

… the public interest engaged at this stage of the process must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the record, and the balancing of the interests of commercial sensitivity or confidentiality against the public interest in the disclosure of that content…

There must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure…

The public interest override contained in … section [36(3)] does not seem to me to be a simple restatement of the overall aim of fostering transparency.”

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.

As I have outlined above, the applicant argued that it is in the public interest that the inspection reports are released in full so that the general public can be satisfied that the inspection regime is fit for purpose and that MPPs are doing everything in their power to contain Covid-19, and that the public knows what steps are being taken to address the outbreaks. He also argued that the HSA should release these reports in the same way as do other State agencies with similar inspection roles, including the identities of the establishments inspected. On this latter point, the applicant referred specifically to inspection reports on healthcare facilities, nursing homes, crèche facilities, direct provision centres, schools, prisons and mental health facilities.

In my view, a distinction can be drawn between the types of inspection reports referred to by the applicant and the inspection reports at issue in this case, having regard to the nature of the establishments subject to inspection. It is important to note at the outset that it is the public body carrying out the inspection that is subject to the FOI Act and not the private enterprises inspected. I take the view that the Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. The examples cited by the applicant comprise bodies, including State institutions, that are involved in the direct delivery of public services, generally also involving significant amounts of public funding. The MPPs in this case are private enterprises.

The details already released disclose the nature of the HSA inspections, findings and recommendations. An indicative date range of the inspections is available from the initial schedule. Therefore, it seems to me that the details already released enable assessments of the HSA’s performance of its functions and of whether its inspection regime is fit for purpose. They also enable a partial assessment of the overall State response to the pandemic.

It is also worth noting that any information contained in the reports concerning measures taken to limit the spread of Covid-19, and the corresponding potential impact on the wider community, is now already historic. The release of the identities of the MPPs at this stage would not, for example, allow the wider community to make more informed decisions on what additional precautionary measures, if any, they might wish to take to better protect themselves, given the historic nature of the information in a rapidly changing environment.

Having regard to the findings of the Supreme Court in the judgment cited above, I am not in a position to find that the general public interest in enhancing the transparency and accountability of the HSA in terms of how it carries out its inspection of MPPs by the release of their identities would, of itself, outweigh the public interest in the protection of the commercial sensitivity of the MPPs as provided for by section 36(1). I am aware of no specific public interest factors in favour of the release of the information at issue that would lead me to conclude that the public interest would, on balance, be better served by its release. I find, therefore, that section 36(3) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSA’s decision on the applicant’s request on the basis that section 36(1)(b) of the FOI Act applies.

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.

 

Peter Tyndall

Information Commissioner