Case 010065. Request for source of complaint regarding the requester's premises - whether release could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence - section 23(1)(b)

Case Summary

Facts

The requester sought access to the source of a complaint to the Board regarding his premises. The Board refused the request on the grounds that section 26(1) applied. The Commissioner found that section 23(1)(b) was applicable

Decision

The Commissioner's authorised officer commented that it was clear, from his examination of the record of the complaint, that its author expected that his or her identity would not be disclosed. The Board said that, in order to ensure that such complaints continue to be made, which sometimes alert it to serious breaches of the European Communities (Official Control of Foodstuffs) Regulations, 1998 and the Food Safety Authority of Ireland Act, 1998, they should be received on a confidential basis. Its position was that confidentiality should apply even where the particular complaint does not result in the detection of a breach of the regulations. The Board contended that any breaching of confidence on its part would have the effect of deterring other potential complainants from passing on valuable information. The authorised officer accepted, therefore, that the complaint was made to the Board in confidence and was accepted in confidence. He also accepted that the information in the letter related to the administration of the civil law - in this case, the European Communities (Official Control of Foodstuffs) Regulations, 1998 and the Food Safety Authority of Ireland Act, 1998. He found that section 23(1)(b) applied to the record in question.

Date of Decision: 15.03.2002

Our Reference: 010065

15.03.2002

Mr. X

Dear Mr. X,

I refer to your application for a review of the decision of the North Western Health Board (the Board) in relation to your request under the Freedom of Information Act, 1997 (the FOI Act) for access to "the source of the complaint lodged with [the] North Western Health Board in relation to staff canteen and toilets in my premises".

I have been authorised by the Information Commissioner to conduct this review on his behalf. At the outset, I would like to apologise for the delay which has arisen in dealing with your case.

Background

The FOI request at issue here was made on 8 December 2000. The Board's decision was to refuse your request. This decision was subsequently upheld by the Board following your application for an internal review of the original decision. On 5 February 2001 you applied to this Office for a review of the Board's decision on your request.

I have now completed my review of the Board's decision. In carrying out this review, I have had regard to the Board's conclusions on the matter, to your communications with this Office and to the provisions of the FOI Act generally. I note that Mr. O'Neill, Investigator, wrote to you on 23 January 2002 to inform you of his preliminary views on the case and inviting comments on the issues involved. As this Office has not heard from you since, I have decided to conclude my review by issuing a formal decision.

Scope of Review

This review is concerned solely with the question of whether or not the Board is correct in refusing you access to the withheld details on the basis that they are exempt from release under the provisions of the FOI Act.

Findings

The Board's decision to refuse access to records, which would identify the source of the complaint made regarding your premises, relied on section 26(1) of the FOI Act. This is an exemption which protects records containing information obtained in confidence. However, I agree with the view expressed by Mr. O'Neill that the exemption contained at section 23(1)(b) of the FOI Act is more applicable in this case. Section 23(1)(b) of the FOI Act provides that a request for access to a record may be refused if release of the record "could...reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence".

In order for this exemption to apply, three tests must be met, i.e. (i) release of the withheld record could reveal the identity of the supplier of information; (ii) the information in the record must have been given in confidence and (iii) the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

I consider that the first test of the exemption is satisfied in that I accept that release of the records in question could reveal, or lead to the revelation of, the identity of the informant. The records you seek are precisely those which would reveal the identity of the person who made the complaint to the Board.

In respect of the second test, the Board argues that the information was given to it in confidence, and that it is its normal procedure to accept such complaints as having been made in confidence. I note from my examination of the records that the complainant specifically stated that he/she wished to remain totally anonymous. Even if the particular complaint was one which resulted in a prosecution, the complainant would have no role in any such prosecution by the Board; thus, his or her identity would not have been revealed as a result of court proceedings. It appears that the complaint was made for a limited purpose (that of instigating an action by the Board) and that it would have been reasonable for the complainant to expect that his or her identity would be kept confidential, even if legal action was taken on foot of the complaint. I accept that there was an understanding on the part of the complainant that any details, which might identify him or her, were given in confidence and would be kept confidential. Accordingly, I am satisfied that the second test of the exemption has been satisfied.

The third test of the exemption requires that the information was supplied to the Board in relation to the "enforcement or administration of the civil law". As the Board is the body responsible for the enforcement of the European Communities (Official Control of Foodstuffs) Regulations, 1998 and the Food Safety Authority of Ireland Act, 1998 in the area in question, I accept, therefore, that the information given does relate to the "enforcement or administration of the civil law".

Accordingly, it seems to me that all the exemptions provided for at section 23(1)(b) apply to the details withheld from you.

Section 23(1)(b) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of the information rather than by the record being withheld, in the event that one of three conditions is fulfilled. In his letter of 23 January 2002 Mr. O'Neill of this Office set out his preliminary views on the application to your case of section 23(3). I accept Mr. O'Neill's conclusion that section 23(3) is not relevant in your case and I find it is not necessary to repeat the analysis given in his letter.

Having considered the issues carefully, I find that the records withheld from you by the Board are exempt from release by virtue of section 23(1)(b) of the FOI Act. In the light of this finding, it is not necessary to consider the application of section 26 of the FOI Act which was the provision relied upon for its decision by the Board.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the North Western Health Board in this case.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Fintan Butler
Senior Investigator