JUDGE HAZEL OLIVERJUDGE TAN IKRAMMEMBER JO MURPHYMARTINA HOGGAppellant
Between
INFORMATION COMMISSIONERCHESHIRE EAST COUNCILRespondent(s)Decision: The appeal is AllowedSubstituted Decision Notice:Cheshire East Council was not entitled to rely on section 31(1)(a) of the Freedom of Information Act 2000 to withhold the disputed information (the number of permitted animals on dog breeding and pet selling licences). The Council is to disclose this information within 28 days from when this decision is sent to the parties.Failure to comply may result in the Tribunal making written certification of this fact to the Upper Tribunal, in accordance with rule 7A of the First-tier Tribunal (General Regulatory Chamber) Rules, and may be dealt with as a contempt of court.REASONS
Background to Appeal
[1]This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 26 November 2024 (IC-311563-Q6G9, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information about current dog breeding and pet selling licences requested from Cheshire East Council (the “Council”).[2]The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).[3]On 8 February 2024, the Appellant wrote to the Council and requested the following information (the “Request”): “Please provide me with copies of all current dog breeding and pet selling licences”.[4]The Council responded substantively on 15 March 2024 and withheld the requested information under sections 31(1)(a) (law enforcement, prevention or detection of crime), and some information under section 40(2) (personal information). The Council indicated where related information (the business name of licence holder, their general location and licence number) was publicly accessible.[5]The Council revised its position on 14 May 2024 on internal review. The Council disclosed copies of the requested licences, with redactions of some names and addresses, and the permitted numbers of animals, under sections 31(1)(a) and 40(2).[6]The Appellant complained to the Commissioner on 14 May 2024. The Commissioner partially upheld the complaint and decided that the names and addresses of licensees could not be withheld. However, the Commissioner decided that section 31(1)(a) could be relied on to withhold the number of permitted animals. This information would be likely to result in the targeting of premises for dog theft, and the balance of the public interest is weighted in favour of maintaining the exemption.
The Appeal and Responses
[7]The Appellant appealed on 14 December 2024. Her grounds of appeal are:a. The Council has failed to demonstrate any link between the disclosure of information on a dog breeding licence and dog theft - they have only speculated that there might be a link.b. Criminals target puppies, and the number of breeding dogs would not tell a thief how many puppies there are on the premises. It is far more likely breeders will be targeted when they advertise litters for sale.c. TheCouncil has previously disclosed copies of dog breeding licences that included the number of breeding dogs kept by each licensed breeder. The Appellant is concerned that the Council is not disclosing the information to avoid public scrutiny.d. The Commissioner took everything the Council said at face value.[8]The Commissioner’s response maintains that the Decision Notice was correct.a. The Commissioner is satisfied that the exemption is engaged based on the Council’s submissions.b. The Commissioner considers disclosure of the number of breeding dogs would undermine the safety of licenced individuals and their animals. The relevant Regulations do not oblige licensees or the Council to publish the withheld information.c. The public interest is served by the information already disclosed or otherwise publicly available.d. The Commissioner remains satisfied with his investigation.[9]The Council was joined as a party to the proceedings by a Direction of Judge Armstrong-Holmes on 8 December 2025. The Council was directed that the response should include submissions on:a. Any evidence relied upon by the Council which it is averred demonstrates a causal link between the potential disclosure of the information and the prejudice which the section 31(1)(a) exemption is designed to protect.b. The likelihood of the prejudice arising.[10]The Council’s response states:a. They have emails from other local authorities confirming that they apply the same exemption for requests for both addresses and dog numbers, due to fear of theft. They give the following examples: i. one local authority that reported a previous theft from one of their business owners some time ago which may have been due to the breeder providing the residential address; ii. another local authority confirmed that they have all operators online but only include the first line of a postcode, and they have some breeders who are incredibly fearful of theft and have been impacted by it in the past; iii. one operator was fearful of even having his Licence on display as they did not want anything out to show they bred due to fears of theft.b. For the same reason, the number of dogs at a business premises is not something that would be disclosed due to the potential for theft and action by animal rights groups targeting breeders.c. The reason for applying the exemption is to prevent the likelihood of harm arising by way of theft/targeted animal activist activity. It would be difficult for the Council to comment on the likelihood of harm arising should the dog numbers be disclosed as this is something that has always had the exemption applied to.[11]The Appellant submitted a reply to the Council’s response which says they have not provided evidence of a link between the potential disclosure and the prejudice the Section 31(1)(a) exemption is designed to protect against, or the likelihood of prejudice arising. The Appellant makes the following points:a. A potential thief will pretend to be a purchaser to gain access to an address and establish how many sale age puppies are on the premises. The dog breeding licence will not tell any potential thief this information.b. The Council mentions the information being used by “activists” but provides no evidence of any harm this could cause.c. The Council appear to be suggesting that in the past theyhave not disclosed either the address or the number of dogs on a dog breedinglicence, which is not true (with evidence of a copy of a dog breeding licence disclosed to her by the Council in 2021).d. The example of theft after providing a residential address shows that the highest risk is when puppies are advertised for sale.e. The Council has provided no evidence in support - no copies of correspondence with the other Councils or correspondence with the breeders they refer to.f. Despite having disclosed the addresses and number of breeding dogs in response to previous freedom of information requests, the Council have produced no evidence of any of the breeders they licensed being the victim of theft or harm from animal rights activists.g. On the public interest – such disclosures will inform the consultation and the development of new legislation on animal welfare planned by the Department for the Environment, Food and Rural Affairs.
Applicable law
[12]The relevant provisions of FOIA are as follows. 1 General right of access to information held by public authorities. (1). Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b). if that is the case, to have that information communicated to him. ……[2]Effect of the exemptions in Part II. ……. (2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—(a) the information is exempt information by virtue of a provision conferring absolute exemption, or(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. …….. 31 Law enforcement. (1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice— (a). the prevention or detection of crime ……. 58 Determination of appeals (1) If on an appeal under section 57 the Tribunal considers— (a). that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.[13]The approach to be taken to prejudice-based exemptions was set out in the First Tier Tribunal decision of Hogan v Information Commissioner [2011] 1 Info LR 588, as approved by the Court of Appeal in Department for Work and Pensions v Information Commissioner [2017] 1 WLR 1:a. Firstly the applicable interests within the relevant exemption must be identified.b. Secondly the nature of the prejudice being claimed must be considered. It is for the decision maker to show that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is “real, actual or of substance”.c. Thirdly, the likelihood of occurrence of prejudice must be considered. Whether disclosure “would” cause prejudice is a question of whether this is more likely than not. To meet the lower threshold of “would be likely to” cause prejudice, the degree of risk must be such that there is a “real and significant risk” of prejudice, or there “may very well” be prejudice, even if this falls short of being more probable than not.
Issues and evidence
[14]The issues are:a. Is section 31(1)(a) engaged by the withheld information?b. If so, does the public interest in maintaining the exemption outweigh the public interest in disclosing the information?[15]By way of evidence and submissions we had the following, all of which we have taken into account in making our decision:a. An agreed bundle of open documents with 333 pages.b. A closed bundle of documents containing the withheld information (unredacted versions of the licences that were disclosed with redactions).
Discussion and Conclusions
[14]In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. As set out in section 58(2), we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision. We deal in turn with the issues.[15]Is section 31(1)(a) engaged by the withheld information? We have considered the three-stage test from Hogan.[16]What are the applicable interests within the exemption? The applicable interests are the prevention and detection of crime. The Council’s position is that disclosure of the number of dogs on a specific premises could allow criminals to target those properties.[17]Is there some causal relationship between the potential disclosure and the prejudice, and is the prejudice “real, actual or of substance”? The Council’s argument is based on the targeting of premises for theft, so the issue is whether there is a causal link with dog theft if the number of dogs at a particular premises is disclosed. This is in the context of all addresses now being publicly available. As explained in the Council’s submissions during the Commissioner’s investigation, the information on the licences is the number of breeding bitches, stud dogs and litters that are permitted to be kept on the premises at any one time (and some also include the number of dogs out of scope). The licence does not give the actual number of dogs, but the maximum number of each type of dog.[18]The Council was provided with an opportunity to provide evidence on this point. This was given in the response to the appeal, as set out above. The Council has provided some anecdotal evidence about the experiences of other local authorities. We note that most of this relates to disclosure of addresses rather than numbers of dogs on a premises. The Council has not provided any evidence of its own experience of dog theft and how this may be related to knowledge about potential numbers of dogs, and has not provided any separate documents or other evidence. The Council also refers to animal activists, but again has not explained the causal connection with knowledge about numbers of dogs.[19]We are not convinced on the evidence we have been provided with that there is a causal relationship between the disclosure of the number of dogs on a particular licenced premises, and an increased risk of dog theft from those premises.a. We note that addresses are already available, which is the most obvious way to find out where there are licenced dog breeders.b. We accept the points made by the Appellant that thieves wish to target puppies, the licence will not tell a potential thief what types of dogs are actually on the premises, and locations can be used to find out this information by posing as a potential purchaser (or simply observing the premises).c. The Council’s submissions during the Commissioner’s investigation suggested that the information will give a clear indication of the number of puppies at each location. Although the licence shows information about the maximum number of litters of puppies, we accept the Appellant’s point that this does not mean there are actually puppies there at any particular time. There is also no information about breed of dog, which is relevant as certain breeds are much more likely to be targeted for theft.d. We also note what the Appellant has said about numbers of dogs being disclosed on licences before, including to the Appellant herself in 2021, and the lack of any evidence from the Council that this has led to an increase in thefts.[20]How likely is the prejudice to occur? We have also considered the next stage of the test, on the assumption there is a causal relationship. The Council was asked to make submissions in its response about the likelihood of the prejudice arising. The Council said, “It would be difficult for the Council to comment on the likelihood of harm arising should the dog numbers be disclosed as this is something that has always had the exemption applied to”. It is not clear that this is correct (as the Appellant says that licences with dog numbers have been disclosed before). The Council has given us only limited information on their assessment of the likelihood of prejudice.[21]We have assessed the prejudice based on the “would be likely to” threshold, meaning a real and significant risk. We find that the prejudice is not “likely” to occur, based on the evidence available to us. This is essentially for the same reasons as set out in paragraph 19 above in relation to whether there is a causal relationship between the disclosure and the prejudice. It is simply not clear that knowing the maximum numbers of dogs would add to the risk of theft in any significant way, when addresses of licenced premises are already publicly available.[22]We therefore find that section 31(1)(a) is not engaged by the withheld information, and the Council was not entitled to rely on it to withhold the number of permitted animals on dog breeding and pet selling licences.[23]We uphold the appeal and issue the Substituted Decision Notice set out at the start of this decision. Signed: Judge Oliver Date:31 July 2026