Ken Foxe, Right to Know CLG and Health and Safety Authority

• Jurisdiction: Ireland
• Judge: Information Commissioner
• Judgment Date: 02 July 2021
• Case Outcome: The Information Commissioner affirmed the HSA's decision. He found that section 36(1)(b) applies to the information and that the public interest does not weigh in favour of its release.
• Court: Information Commission
• Respondent: Health and Safety Authority
• Record Number: OIC-103878-W7J6Q0

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...