Mr A and Department of Agriculture, Food and the Marine

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 04 April 2022
• Case Outcome: The Senior Investigator affirmed the Department's decision.
• Court: Information Commission
• Respondent: Department of Agriculture, Food and the Marine
• Record Number: OIC-117316-X1R6G6

Whether the Department’s decision to amend a record containing incomplete, incorrect or misleading personal information relating to the applicant by way of the addition of a statement is in compliance with the requirements of section 9 of the FOI Act

4 April 2022

Background

For farmers to receive a payment under the Single Payment Scheme, beneficiaries must comply with a variety of regulations on the environment, public health, animal health, plant health, animal welfare and land maintenance. This system is known as Cross Compliance. In essence, Cross Compliance aims at ensuring the safe production of food, the welfare of animals, the sustainable use of land, the maintenance of natural resources and limiting climate change.

The request that is the subject of the review in this case concerns a Cross Compliance inspection carried out by the Department on the applicant’s sheep farm in December 2019. The Cross Compliance Report (the CCR) generated in the course of this inspection stated that the reason for inspection was “5% ovine penalties”. On 23 September 2021, the applicant sought the amendment of the reason for inspection recorded on the CCR. He said he had successfully appealed a decision to impose the 5% penalty in connection with an incident in 2018 and that the penalty had been removed in November 2019, before the December 2019 inspection was carried out. He requested that the reason for inspection on the CCR be corrected immediately to indicate that the reason for inspection in December 2019 was not due to 5% ovine penalties.

Initially the Department said that the applicant’s request was not a valid FOI request and that it could not process it. In response, the applicant drew its attention to section 9 of the FOI Act which provides for the amendment of records relating to personal information. On 20 October 2021, the Department issued its decision in which it refused the application for amendment on the ground that the inspection selection procedure was carried out at a national level in the first half of 2019 and that the reason the applicant was selected for inspection was the non-compliance on file from the 2018 inspection. It said that the events from the original inspection selection, review and appeal are documented in the Department’s records and that the records are not incomplete, incorrect or misleading. It said that it would place a copy of this decision letter on both the 2018 inspection file and the 2019 inspection file.

On 21 October 2021, the applicant sought an internal review of that decision. He argued that the Department should have a mechanism in place to update records to reflect decisions of the Agriculture Appeals Office and that inaccurate information should not appear on records concerning him or his farm due to the failure of the Department to have such a mechanism in place. He said that he had been told that the information contained in the CCR was correct when the report was created. He disputed this, stating that the CCR had been created on 17 December 2019 while the decision of the Agriculture Appeals Office had been communicated to the Department on 31 October 2019. He said that allowing the Department to “ignore” Appeals Office decisions was creating a scenario whereby the Department could carry out unjustified inspections on farms even if farmers had won their appeals. The Department affirmed its decision on 8 November 2021. It said that the removal of the penalty did not alter the initial reason for inspection selection as the selection was made prior to the appeal decision. On 15 December 2021, the applicant sought a review by this Office of the Department’s decision.

In the course of the review, the Investigating Officer wrote to the Department and informed it of her view that the case had been made that the information at issue was misleading and asked whether the Department was willing to consider the addition of a statement to the CCR to the effect that that while the decision to inspect was based on a penalty that had been imposed, the penalty was subsequently successfully appealed. The Department stated that having considered the matter further it was willing to add a note to the CCR, stating that the 5% ovine penalty was overturned on appeal. It said that it would then upload this amended CCR to the applicant’s 2019 electronic file. This proposal was put to the applicant by the Investigating Officer on 24 March 2022. In response, the applicant stated that the addition of a note or statement to the record was not acceptable to him.

In the circumstances, I have decided to conclude this review by...