Case 100175

The Senior Investigator found that the Council is justified in its decision to refuse the request on the basis of section 23(1)(b) of the FOI Act.

Case Summary

Whether the Council is justified in its decision, in reliance on section 23(1)(b) of the FOI Act, to refuse a request for access to the name and address and other identifying details of the person or persons who made complaints to the Council with regard to Enforcement File No. Y.

Date of Decision: 22.10.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

In his FOI request to the Council, dated 10 May 2010, the Applicant sought access to copies of complaints made to Cork County Council concerning Enforcement File No. Y. The Council's decision of 20 May 2010 refused the request on the basis that the relevant record was exempt from release in accordance with sections 23(1)(b) and 26(1)(a) of the FOI Act. This decision was upheld in the Council's internal review decision of 30 March 2009. The applicant then applied to this Office on 20 July 2010 for a review of the Council's decision.

In the course of this review, Mr. Ciarán O'Donohoe, Investigator of this Office gave the Applicant his preliminary view that the Council's that details which could lead, directly or indirectly, to the identification of the complainant(s) are exempt from release under section 23(1)(b) of the FOI Act, but that the remainder of the record is not exempt from release and should be released accordingly. It is noted that both the Council and the provider(s) of the information sought by the Applicant accepted the preliminary views of this Office. In view of the fact that the remainder of the record has been released by the Council, it is therefore outside the scope of this review.

In his response of 15 October 2010 to the Investigator's preliminary view, the Applicant outlined that he did not accept Mr. O'Donohoe's preliminary views and restated his belief that the complaint was made with malicious intent.

In conducting this review I have had regard to the submissions of the Council as well as those of the applicant, the content of the record at issue and the provisions of the FOI Acts.

Conducted in accordance with section 34(2) of the FOI Act by Sean Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope of Review

This review is concerned with the question of whether the Council is justified in its decision to refuse access to details which could lead, directly or indirectly, to the identification of the complainant(s) on the basis that they are exempt from release under section 23(1)(b) of the FOI Act.

Submissions

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Findings

Analysis and Findings

The record in question is a letter of complaint. The Council's position is that this record is exempt from release by virtue of section 23(1)(b) of the FOI Act.

Section 23(1)(b)

Section 23(1)(b) of the FOI Act provides as follows:

"23._(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to ....

(b) 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 separate requirements must be met, i.e.

1. that release of the record in question could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information,

2. that the information in the record was given in confidence and

3. that the information was supplied to the public body in relation to the enforcement or administration of the civil law.

First Requirement

The complainant(s) in this case supplied name(s) and address(es) and other passages in the record, if released, which could lead directly or indirectly to the identification of the supplier(s) of the information. Therefore, the first requirement under section 23(1)(b) is met with regard to this information.

Second Requirement

The Council states that the "enforcement of planning legislation is a very important part of Cork County Council's role as a Planning Authority". The Council further states that this role is very much assisted by members of the public, who bring cases of non-compliance to its attention and that it seeks to protect "this valuable source of information". It also makes the point that representations of this kind are treated as confidential.

I accept that in the absence of an express or implied understanding of confidence, many people would be unwilling to provide relevant information to the Council in relation to possible breaches of the civil law. It seems to me that, in the event that people were unwilling to give such information to the Council, its information gathering process would be compromised either by the complete withholding of the information or by the information being provided anonymously. In the latter case, it is generally accepted that anonymously given information is less useful than information from an identified source.

In determining whether the information was provided in confidence, the issue of whether it was provided in good faith is a factor to be considered. Malicious allegations, which are known to be false, cannot be regarded as having been made in good faith and it is difficult to see how, in such circumstances, they could be regarded as having been made in confidence.

In this particular case, the Applicant contends that the complaint was malicious. He contends that his client has been greatly inconvenienced as a result of the complaint. He further contends that the complaint has caused considerable disharmony in the neighbourhood as nobody knows who made the complaint. The Applicant also argues that no enforcement action has been taken against him save a visit from the County Council's inspectors. In this regard, the Council has advised this Office that the Enforcement File remains under investigation. In any event, the Commissioner has held previously that even if the Council did not, on foot of complaints made, make a finding that an Applicant was in breach of particular legislation, it does not necessarily follow that the complaints made were malicious. Whether a complaint proves to be unfounded does not, in itself, undo the confidential basis on which the Council receives such information.

The issue of possible malice or bad faith, in the context of complaints made to public bodies, has been considered previously by the Information Commissioner. In Mrs ACL and the Mid-Western Health Board, the former Commissioner explained that "clear evidence" is required to support a claim that section 23(1)(b) should not apply on the basis that the information was given maliciously. Moreover, in Mr X and a Health Board, the former Commissioner also stated: "There is, of course, a clear distinction to be made between, on the one hand, allegations which are known to be false and are made maliciously and, on the other hand, allegations made or information given in good faith which are ultimately discovered to be unfounded."

It has been the experience of this Office in dealing with similar cases involving Council records that unless a complainant indicates that he expects his or her identify to be disclosed, information about law enforcement matters which would disclose the identity of the complainant is normally treated as having been given in confidence.

In the circumstances, it seems to me that the complaints were made for a limited purpose (that of instigating an investigation by the Council) and that it would have been reasonable for the complainant(s) to expect that any identifying details would be kept confidential. Accordingly, I am satisfied that there was an implied understanding on the part of the complainant(s) that the complaints were given in confidence and would be kept confidential. As I am not satisfied that there is enough evidence to support the view that they were made maliciously or in bad faith, I accept therefore that the second requirement under section 23(1)(b) is met.

Third Requirement

The third requirement is that the information in question must have been given to the public body in relation to the enforcement or administration of the civil law. As the Council is the body responsible for planning and development matters in the area in question. I am satisfied that the information in question does relate to the "enforcement or administration of the civil law".

As each of the three requirements has been met, I find that the records in question, which identify the complainant(s) could qualify for exemption under section 23(1)(b) of the FOI Act.

The public interest

Section 23(1)(b) does not constitute a mandatory exemption in the sense that, once the elements necessary for its operation have been found to exist, the exemption must be applied. As with all non-mandatory exemptions in the FOI Act, I take the view that it must be demonstrated that it is proper to apply the exemption. In this case, I consider that the exemption is justified in order to protect a valid understanding of confidence and to safeguard the flow of information to the Council on planning matters. Therefore, I accept that the Council's refusal to grant access to records identifying the complaint is a proper exercise of its discretion.

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 its being withheld, in the event that one of three conditions is fulfilled. The first condition is that the record under consideration "discloses that an investigation for the purposes of the enforcement of any law... is not authorised by or contravenes any law". I do not consider this to be the case. The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law" and the third condition is that it contains information concerning "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law". The withheld details do not contain any information that satisfies these conditions. Accordingly, I am satisfied that section 23(3) does not apply and that the withheld record is exempt under section 23(1)(b).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Cork County Council in this case.

Right of Appeal

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 a review must be initiated not later than eight weeks from the date of this letter.

Seán Garvey

Senior Investigator

22 October 2010