Milk Testing Results

Summary

A request for Isle of Man Creameries milk testing results from 2017 was partially refused due to commercial interest exemptions, while somatic cell count data was withheld because the Department does not hold it.

Key Facts

• The Department of Environment, Food and Agriculture refused to release bacteriological and chemical analysis results under Section 30(2)(b) of the Freedom of Information Act 2015.
• The exemption was applied because disclosure would prejudice the commercial interests of the Isle of Man Creameries and harm the relationship with the dairy industry.
• The Department stated it does not hold or could not find specific records regarding somatic cell counts for the requested period.
• The response cited Commission Regulation (EC) No 2073/2005 as the source for milk testing guideline figures.
• The public interest test concluded that protecting the fragile local dairy industry outweighed the general interest in transparency for this specific data.

Data Disclosed

• January 2017
• December 2017
• 22nd January 2018
• 2nd February 2018
• 30th January
• Section 30(2)(b)
• Section 23 through 25
• Commission Regulation (EC) No 2073/2005
• Food Act 1996
• Animal Health Act 1996

Exemptions Cited

• Section 30(2)(b) of the Freedom of Information Act 2015 (Commercial interests)

Original Request

I am writing under the Freedom of Information Act 2011 to request for the provision of all documents regarding Milk Testing Results of the Isle of Man Creameries from a year period between January 2017 and December 2017. Specifically, my focus is any such documentation or reports comprising of results concerning the somatic cell count, from pre pasturisation or the 'raw' milk stage and the post homogenized and pasturisation stage or ultimately, the end product itself. I would prefer to receive this information electronically ideally in adobe PDF, Word Doc or plain text formats via email, however, if inconvenient I can accept hard copies. I would be grateful if you could acknowledge that you have received this email by responding with confirmation. I look forward to your response within the statutory time limits. Thank you for your consideration of this request.

Data Tables (1)

Full Response Text

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 Department of Environment, Food and Agriculture

  Rheynn Chymmyltaght, Bee as Eirinys

2nd February 2018

Dear

Request under the Freedom of Information Act 2015 (FoIA) Ref: IM117741I IOM Creameries test results Thank you for your request dated 22nd January 2018. You asked: “I am writing under the Freedom of Information Act 2011 to request for the provision of all documents regarding Milk Testing Results of the Isle of Man Creameries from a year period between January 2017 and December 2017.

Specifically, my focus is any such documentation or reports comprising of results concerning the somatic cell count, from pre pasteurisation or the 'raw' milk stage and the post homogenized and pasteurisation stage or ultimately, the end product itself.

…”

Response:

1. “… all documents regarding Milk Testing Results of the Isle of Man Creameries …”

While our aim is to provide information whenever possible, in this instance the Department cannot provide the bacteriological and chemical analysis results that you have requested as a Qualified Exemption applies; specifically section 30(2)(b):

Information is qualified exempt information if its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the public authority holding it).

In coming to this conclusion the following considerations have been made: • Isle of Man Creameries is a commercial body operating for the dairy industry of the Island. • Disclosure of the information would cause harm to the relationship between the Department and the Manx dairy industry. Freedom of Information
Co-ordinator Corporate Services Directorate, Thie Slieau Whallian, Foxdale Road,
St John’s, Isle of Man, IM4 3AS Tel no (01624) 685854 Fax no (01624 685851 Email: defa@gov.im
www.gov.im Quoting Ref: IM117741I Your Ref:

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Public Interest

In assessing where the Public Interest lies in relation to Section 30(2)(b) of the FoIA and the release of this information the following factors have been considered.

Factors in favour of disclosure are:

• There is a general public interest in ensuring that the regulation and testing of foodstuffs is carried out rigorously and without fear or favour in order to protect the public from any risk to their health. • There is a general public interest in ensuring that the regulation and testing of foodstuffs is transparent and fair. Factors in favour of maintaining the exemption and withholding the information are: • The dairy industry on the Island contributes significantly to consumer choice in relation to dairy produce and to our landscape. Those are local characteristics that benefit both the local population and the visitor economy. It is a fragile industry that has diversified in recent years but still needs some support from government to buffer against the impacts of cheaper imports. • In the event of a risk to public health there would, very quickly, be publicity informing the public of that risk and of the actions to take. Indeed, we would be obliged to release information in those circumstances (see paragraph 7 below). Action would also be taken by the Department, working with the IOM Creamery and wider industry, to ensure that any risk to public health was removed. Having balanced the factors in favour of disclosure with the factors in favour of maintaining the exemption we consider that, in all circumstances of this case, the public interest in maintaining the Qualified Exemption under section 30(2)(b) outweighs that in disclosure. 2. “… any such … results concerning the somatic cell count …” While our aim is to provide information whenever possible, in this instance the Department does not hold or cannot, after taking reasonable steps to do so, find the information that you have requested.

1. Further information relating to food testing Further to our telephone conversation of the 30th January, during which you mentioned your general interest in processed foods and that you would like to know the guideline figures for the testing of milk, we would like to provide some context and explanation of the food testing regime and legislation. The criteria themselves are noted in the Annex to Commission Regulation (EC) No 2073/2005, a hyperlink to which is provided below.

2. Section 23 through 25 of the Food Act 1996 relates to the sampling and analysis of foodstuffs.

3. The testing of animals/milk for Brucellosis is imposed on the Department through provisions contained in The Animal Health Act 1996 - The Brucellosis (Testing and Control) Order 2002 - s7. (1) “Any keeper of a herd of dairy cows shall comply with a
   request by an inspector for facilities to examine, test and sample any milk for brucellosis;”
   This function is fulfilled by our Animal Health officers

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1. All dairy product establishments on the island are registered by the Department and are subject to official controls enforced and executed by the Department.

2. The Department’s Environmental Health Officers enforce parts of European Commission regulations 852/2004, 853/2004, 854/2004 implemented by the European Communities Isle of Man Act 1973 and the European Communities (Food Hygiene) Laws (Application) Order 2007; the Food Act 1996, Food Act 1996 (Amendment) Regulations 2006 and the Food Hygiene Regulations 2007.

3. EC Regulation 882/2004, implemented by the Food Act 1996 (Amendment) Regulations 2006, states that official controls should be carried out using appropriate techniques developed for that purpose, including routine surveillance checks and more intensive controls such as inspections, verifications, audits, sampling and the testing of samples.

4. Article 2 of EC 882/2004 defines "sampling for analysis" as taking feed or food or any other substance (including from the environment) relevant to the production, processing and distribution of feed or food or to the health of animals, in order to verify through analysis compliance with feed or food law or animal health rules;

5. Article 7 of EC 882/2004 states that the competent authority shall take steps to ensure that members of their staff are required not to disclose information acquired when undertaking their official control duties which by their nature are covered by professional secrecy in duly justified cases. Protection of professional secrecy shall not prevent the dissemination by the competent authorities of information referred to in paragraph 1(b) - Article 10 of Regulation (EC) No 178/2002 “Without prejudice to the applicable provisions of Community and national law on access to documents, where there are reasonable grounds to suspect that a food or feed may present a risk for human or animal health, then, depending on the nature, seriousness and extent of that risk, public authorities shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or feed, or type of food or feed, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk”;

6. Regarding your request for somatic cell count results of milk acquired by the Creamery. IOM Creameries carry out their own testing. A sample is taken from the farm dairy bulk tank by the tanker driver and tested prior to it being released into the creamery tanks for treatment/production. The Department monitors the checks in accordance with Annex 1V EC854/2004 and is therefore aware of any issues when necessary;

7. EC 854/2004 states that if the food business operator has not corrected the situation within three months of first notifying the competent authority of non-compliance with the criteria with regard to plate count and somatic cell count, delivery of raw milk from the production holding is to be suspended or — in accordance with a specific authorisation of, or general instructions from, the competent authority — subjected to requirements concerning its treatment and use necessary to protect public health. This suspension or these requirements are to remain in place until the food business operator has proved that the raw milk again complies with the criteria;

Useful hyperlinks Food Act 1996 https://legislation.gov.im/cms/images/LEGISLATION/PRINCIPAL/1996/1996- 0008/FoodAct1996 3.pdf
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Food Act 1996 (Amendment) Regulations 2006 http://www.tynwald.org.im/links/tls/SD/2006/2006-SD-0194.pdf The Food Hygiene Regulations 2007 http://www.tynwald.org.im/links/tls/SD/2007/2007-SD-0594.pdf
Commission Regulation (EC) No 2073/2005 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:338:0001:0026:EN:PDF

Your right to request a review If you are unhappy with this response to your Freedom of Information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post to the sender of this letter at the address above. An electronic version of the relevant complaint form can be found by going to our website at www.gov.im/foireview. If you would like a paper version of the complaint form to be sent to you by post, please contact us and we will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.
If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1 Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act; or 2 Whether we are justified in refusing to give you the information requested.

In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your rights to review is on the Information Commissioner’s website at: https://www.inforights.im/
If anything is unclear, or if you have any queries concerning this letter, please do not hesitate to contact me. Further information about Freedom of Information requests can be found here: https://www.gov.im/about-the-government/freedom-of-information

Yours sincerely

FOI Co-ordinator