The Information Commissioner's Office (ICO) has upheld a complaint HUSH against the Food Standards Agency (FSA) in relation to their refusal to release information provided to it by McDonalds with regard to the cooking of burgers.

Background

HUSH first contacted the FSA in April 2006 after becoming aware that the FSA had asked the Advisory Committee on the Microbiological Safety of Food(ACMSF), a committee set up by Government to provide advice on microbiological issues relating to the food safety, to review the existing guidance on the safe cooking time and temperature of burgers. The ACMSF had formed a sub-group to review the matter.

HUSH specifically requested copies of all information held by the FSA / ACMSF in relation to the ongoing review. Most importantly, HUSH wanted copies of all documentation submitted by an unnamed US burger chain briefly referred to in the minutes of an ACMSF meeting. The request was made under the Freedom of Information Act (FOIA).

Protracted correspondence with the FSA followed in relation to the release of this information. Following repeated threats of legal action by HUSH, some, but not all, of this information was released on a piecemeal basis between June 2006 and June 2008.

On reviewing the information initially withheld but then gradually released, it became clear that the unnamed US burger chain was in fact McDonalds, that McDonalds had initially contacted the FSA to request a review of the existing guidance, that McDonalds had then been invited to make a private presentation to the ACMSF sub-group in support of their view that the existing guidance was too stringent and that the McDonalds party included Dr Norman Simmons, a former member of the ACMSF and chair of an previous sub-group of the ACMSF which had produced an earlier report on E.coli and food safety.

However, the FSA continued to refuse to provide other documentation considered by the ACMSF sub-group as part of the review, including further information provided to the FSA / ACMSF by McDonalds, on the basis that its disclosure was covered by exemptions in FOIA relating to commercially confidential information, information provided by third parties in confidence or information intended for publication at a later date.

The FSAs failure to provide the information requested, either promptly or at all, severely limited HUSHs ability to contribute to the ACMSFs review or the subsequent public consultation of the ACMSFs findings and recommendations issued by the FSA in July 2006 and requiring a response by October 2006. In fact, the FSA only announced their intention to hold a public consultation after HUSH threatened a judicial review challenge of its failure to do so. HUSH responded to the consultation but stressed that their ability to respond was hampered by the FSAs refusal to disclose all of the documentation considered by the ACMSF in reaching their views.

HUSH made a formal complaint to the ICO in August 2006 complaining about the FSAs refusal to disclose information requested.

HUSH then entered into protracted telephone discussions and correspondence with the ICO with regard to their investigation of this matter. It was clear from telephone discussions with the Officer investigating the matter that the ICO were also in regular discussions with the FSA.

The FSA then disclosed further information to HUSH in May and June 2008. This included two large reports considered by the ACMSF in their original review. Specifically, a 30-page document entitled Epidemiology of E.coli O157 and a 16-page presentation entitled Meat and Carcass Contamination by Verocytotoxin-producing E.coli (VTEC). The FSA had previously described the information that was being withheld as minimal.

HUSH consider that the FSA only belatedly released this information some two years after it was first requested and 18 months after it was required in order to prevent the matters being formally addressed in the ICOs Decision Notice (on the basis that once the information has been provided however late the ICO generally decides not to pursue the complaint further.

ICO's Decision Notice

In its Decision Notice dated 27th July 2009, the ICO has upheld HUSHs complaint against the FSA in relation to the outstanding information not disclosed by the FSA. This consists of a slide from McDonalds presentation to the ACMSF sub-group.

The ICO consider that the FSA were wrong to refuse to disclose the information on the grounds of commercial confidentiality or on the basis that it had been provided by a third party (McDonalds) in confidence. Put simply, the ICO took the view that the concerns were exaggerated and that, in any case, these considerations were outweighed by the public interest in the information being disclosed.

ICO's findings with regard to arguments concerning commercial confidentiality

Having reviewed the withheld information and received arguments from the public authority [the FSA], the Commissioner is of the view that the information on the slide is not information which should necessarily raise any public concerns or that would indicate that the companys products differed from others sold commercially. He is not satisfied that disclosure would have caused a real and significant risk to the companys commercial interests (Para 56)

he notes that the focus of the request was on the evidence submitted to the ACMSF working group by the company which had originally sought to have the existing guidance reviewed (Para 59)

The release of the withheld information would have allowed a much wider group of interested parties to consider the relevant data, identify any concerns that it raised and challenge any potential inaccuracies. (Para 60)

The disclosure of the information would have allowed the public to contribute more effectively to the ongoing debate about the subject. This is of particular importance at a point where there is an opportunity for the public to influence the debate prior to any decision being taken (Para 61)

There is a significant public interest in transparency in decision making by public authorities. In this case, there is clearly an argument that the company that provided the withheld information had greater access to the policy making process other than interested parties in light of the fact that the review of the guidelines was initiated following its suggestion that they should be re-examined. There is therefore a public interest in there being a scrutiny of process and that the information the company was able to put before the ACMSF committee to ensure that its relationship with that committee was not unduly influential. (Para 63)

It is apparent that the company was engaged in lobbying the public authority and the ACMSF committee with a view to the existing guidance in this area being changed in a way that made it more compatible with its own perceptions as to the appropriate cooking regime for burgers. Disclosure could also therefore have contributed to the public understanding of the degree to which the companys input may have shaped policy in this area. (Para 64)

Having considered the relevant public interest documents, the Commissioner is of the view that, even if the exemption had been engaged, the public interest in maintaining the exemption would not have outweighed the public interest in disclosure in relation to the withheld information. He is influenced by the need for the public to be able to properly scrutinise and comment on evidence submitted to a public body reviewing food safety guidance, particularly where the evidence is presented by an organisation which appears to have had some influence in the initial setting up of the review. (Para 65)

ICO's findings with regard to arguments concerning information provided in confidence

The Commissioner is not satisfied that disclosure would have had a detrimental impact on the company for the same reasons that he did not believe that disclosure would have been likely to prejudice its commercial interests in relation to section 43(2) (Para 73)

Although the Commissioner was not convinced that a detriment to the duty of confidence existed in relation to the withheld information, he considered it prudent to examine, if there had been a duty of confidence, whether the public authority would have had a defence to a claim for breach of any such duty based on the public interest in disclosure of the information concerned (Para 74)

The Commissioner took into account the same public interest arguments as to whether there would have been a defence to a claim for breach of confidence as he considered in relation to the arguments in favour of disclosure when determining the applicability of section 43(2) (Para 84)

After considering the public interest arguments, the Commissioner has formed the view that, in this case, the public interest in disclosure outweighed the public interest in maintaining the duty of confidence owed to the company. He is influenced by the need for the public to be able to properly scrutinise and comment on evidence submitted to a public body reviewing food safety guidance, particularly where the evidence Is presented by an organisation which appears to have had some influence in the initial setting up of the review (Para 85)

In light of the ICO decision, the FSA is now required to disclose the outstanding information within 35 days.

ICO's further findings of concern

Despite belatedly disclosing some information over two years after it was first requested but before the conclusion of the ICOs investigation so that the disclosure was not subject to a formal finding by the ICO, the ICOs Decision Notice nonetheless highlights a series of additional matters of concern in relation to the FSAs behaviour. The ICO take the view that the FSA should have disclosed much of the information far more quickly.

Although they do not form part of this Decision Notice the Commissioner wishes to highlight the following matters of concern: (Para 90)

The public authority withheld a report in full under sections 41 [Information provided in confidence] and 43(2) [commercial interests] which had been provided to it by the company. This is despite the company having informed the public authority, at a point prior to the request being made, that many of the issues raised in the report were in the public domain. It was only disclosed after the Commissioner pointed this out to the public authority. This would suggest that the public authority should not have withheld all or most of the report when the request was made. (Para 91)

Another report provided by the company was withheld under sections 41 and 43(2) until the Commissioner informed the public authority that its main findings were contained in the draft report prepared by the ACMSF Committee. This draft report had been made available on the public authoritys website form a point shortly after the request was made. The public authority then withdrew its arguments that the report was exempt from disclosure. Whilst the Commissioner has made no judgement as to whether the public authority was entitled to withhold the report at the time of the request, it would have been appropriate for it to have reviewed its decision in light of the information it should have been aware had been placed in the public domain. (Para 92)

The above issues suggest that the public authority should have taken more care in the initial application of exemptions, and in its continued reliance on those exemptions, in light of the information it should have been aware was in the public domain. (Para 93)

The Commissioner also notes that the public authority relied on in section 22 [Information intended for future publication] to withhold two research papers which were subsequently disclosed to the complainant. However, publication did not occur until over two years later. He is concerned that the public authority should make sure that before applying the exemption in future that it ascertains that there is a definite intention to publish the relevant information within a realistic and reasonably short timeframe from the point at which the request has been made (Para 94)

Steve Nash, Co-founder Member of HUSH, welcomed the ICOs Decision Notice commenting:

HUSH are pleased that the Information Commissioners Office have supported our complaint against the Food Standards Agency's refusal to provide information relating to the safe cooking of burgers. On the one hand, the FSA say that it is their job to protect the public's health and consumer interests in relation to food, but on the other hand, the FSA then refuse to make information on food safety available to the public. It should be a matter of enduring shame to the FSA that it has taken three years for the information to be provided and it has required a small charity such as HUSH to pursue a long and time-consuming complaint to the ICO in order for them to do this. We sincerely hope that this decision will ensure that the FSA act in a more open and transparent manner in relation to future requests for information.

We are particularly disappointed that the FSA and McDonalds have raised arguments of commercial confidentiality to prevent the disclosure of food safety information. As the ICO correctly say, having initially lobbied for a review of the guidance and then been invited to make a presentation to the committee reviewing the matter, it is particularly important that the information put forward by McDonalds can be reviewed and scrutinised by the public. We await the disclosure of the further information submitted to the FSA by McDonalds with interest.

Sean Humber, HUSH's solicitor, commented: It is obviously pleasing that the ICO have ultimately upheld the complaint and that the FSA are now required to disclose the outstanding information. However, it is disappointing that it has taken almost three years for the ICO to investigate this complaint and reach a decision, despite the original letter of complaint explaining the urgency of the matter. This delay had the very real effect of severely hindering HUSHs ability to respond to the FSAs consultation on the ACMSFs findings in autumn 2006 as HUSH were unable to see all the information considered by the ACMSF in reaching their views. Sadly, this really is a case of justice delayed is justice denied.