Case 100201

The Commissioner found that the Council's decision to refuse access to the record concerned is justified under section 23(1)(b) of the FOI Act and affirmed the decision accordingly.

Case Summary

Whether the Council's decision to refuse access to a record containing an anonymous complaint relating to the applicants' eligibility for housing allocation is justified under the FOI Act.

Date of Decision: 09.02.2011

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

Background:

In a request to the Council dated 28 June 2010, the applicants sought access under the FOI Act to records relating to their housing application.  The Council granted the request in part, but refused full or partial access to three particular records.  Access to records number 33 and 130 was refused under section 26 of the FOI Act on the basis of confidentiality.  Partial access to record number 93 was refused on the basis of section 28 of the FOI Act on the basis that the details withheld consist of personal information relating to third parties.  In a letter dated 24 August 2010, the applicant applied to my Office for a review of the Council's decision.

I have now completed my review in accordance with section 34(2) of the FOI Act.  In conducting this review, I have had regard to the submissions made by the Council and the applicants, including the applicants' written comments dated 2 November 2010 in response to the preliminary view letter issued by Mr. Seán Garvey, Senior Investigator, on 21 October 2010.  I have decided to conclude this review by way of a formal, binding decision.

Conducted by the Information Commissioner in accordance with section 34(2) of the FOI Act

Scope of the Review 

In his preliminary view letter dated 21 October 2010, Mr. Garvey noted that records 33 and 130 contain the same text, though record 130 has handwritten annotations not included on record 33.  In the circumstances, Mr. Garvey proposed to exclude record 33 from the scope of the review.  Mr. Garvey also advised the applicants of his view that record 130 is exempt under section 23(1)(b) on the basis that access to the record 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.

In relation to record 93, Mr. Garvey explained that it contains the results of searches for land folios undertaken by the Council.  Mr. Garvey noted that the Council released the part of the record containing the applicants' details but redacted the remainder in order to remove the personal information of individuals other than the applicants.  Mr. Garvey advised the applicants that he therefore agreed with the Council that the withheld portions of record 93 are exempt under section 28(1) of the FOI Act.

In their reply to Mr. Garvey dated 2 November 2010, the applicants did not dispute his proposal to exclude record 33 from the scope of the review.  The applicants also raised no challenge to Mr. Garvey's preliminary view in relation to record 93.  It was subsequently confirmed by telephone that the review may proceed in relation to record 130 alone.  In the circumstances, I consider that my review in this case is now concerned solely with the question of whether the Council's decision to refuse access to record 130 is justified under the FOI Act.  I note, however, that, given the exclusion of record 93 from the scope of the review, the applicant's are entitled to a refund of the application fee that was received by this Office on 25 August 2010.

Submissions

.

Findings

Preliminary Matters

Before dealing with the relevant exemptions, I wish to make two points.  The first is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.  This constraint means that, in the present case, the extent of the reasons that I can give is limited.  However, I am mindful of the burden of proof under section 34(12)(b) of the Act, which requires the Council to show to my satisfaction that its decision to refuse to grant the request is justified.

Secondly, I wish to explain my approach to the granting of access to parts of records.  Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record.  Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed.  This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, I take the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.  Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Section 23(1)(b)

As noted above, the Council refused access to the record at issue in this case under section 26(1)(a) of the FOI Act.  However, I agree with Mr. Garvey that section 23(1)(b) of the FOI Act is the more relevant exemption to consider in this case.

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 withheld record 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

In this case, the letter of complaint is anonymous.  However, it includes certain identifiers and a level of detail from which it is reasonable to conclude that access to the contents may enable to the applicants to discern the identity of the informant.  In other words, access to the letter as it is written could reasonably be expected lead to the identity of the author.  I also consider that access to the letter could reasonably be expected to reveal the source of the information given to the Council in this case.  I am therefore satisfied that the first requirement under section 23(1)(b) is met.

Second Requirement

In their submission dated 2 November 2010, the applicants have indicated that they do not dispute the position of the Council and Mr. Garvey with respect to the issue of confidentiality.  For the avoidance of any doubt, however, I note that the informant who wrote the letter of complaint used a pseudonym, which itself suggests that s/he did not wish his/her identity to be revealed.  Moreover, I accept that, in the absence of an express or implied understanding of confidence, many people would be unwilling to provide relevant information to a Council in relation to possible breaches of the Housing Acts.   In this case, the substance of the complaint could have been independently verified by an investigation without reference to the complainant as a "witness".  It is also apparent from the contents of the letter that the complaint at issue was made for the limited purpose of instigating an investigation by the Council.  In the circumstances, it would have been reasonable for the complainant to expect that his or her identity would be kept confidential, even if action was taken on foot of the complaint.  Accepting that the information was given in confidence does not necessarily mean that the Council is prohibited from making use of that information, or that it might not reveal the content, i.e. the substance of the allegation, if necessary; however, it does mean that in the normal course the identity of the source of the information will be kept secret.  I am therefore satisfied that there was an implied understanding on the part of the complainant that the communication with the Council was in confidence and that, at the very least, details which might identify the complainant would remain confidential.

I note that, in determining whether information was provided in confidence, the issue of whether the information was provided in good faith is a factor to be considered.  Public bodies may well operate on the basis that they should accept certain information in confidence, and continue to respect that confidence, even where it subsequently transpires that the information is incorrect.  However, where it transpires that information was given in bad faith, and may well have been malicious, the informant cannot have any expectation that the communication will be treated in confidence.  I also consider that a public body would not wish to convey, even by implication, that information given in bad faith would be treated as confidential. 

In this context, I note that, in response to Mr. Garvey's preliminary view, the applicants maintain that the complaint made against them was malicious and untrue.  However, while the applicants assert on the one hand that they do not necessarily wish to know the identity of the informant, on the other hand they make the following statement in their submission dated 2 November 2010:  "In order to challenge that the information given to [the Council] and that the motivation was malicious, we would have to know who the original complainant was".  It seems therefore that the applicants do not at present have any evidence to support their claim of malice in this case. 

The issue of possible malice or bad faith, in the context of complaints made to public bodies, has been considered by the Information Commissioner in a number of decisions.  For instance, in Mr X and a Health Board, Case Number 99397, also available at www.oic.gov, the former Commissioner 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." 

In this case, as Mr. Garvey has explained to the applicants, the Council was contacted in relation to the claim of malice.  According to the Council, its decision to refuse the applicants' housing application was based on the applicants' income at the time and was not influenced by the the content of the record at issue.  In any event, the Council has no reason to believe that the complaint was malicious.  I find no other basis for concluding that the complaint was made with malicious intent.  In the circumstances, I am satisfied that the second requirement of section 23(1)(b) has been 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.  Again, the applicants have stated in their submission dated 2 November 2010 that they do not dispute this aspect of Mr. Garvey's preliminary view, with which I concur.  I am therefore satisfied that the letter of complaint qualifies for exemption under section 23(1)(b) of the FOI Act. 

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 relating to its administration and enforcement of the Housing Acts.  Therefore, I accept that the Council's refusal to grant you access to the name and other identifying details of the complainant 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 it 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 purpose of the enforcement of any law... is not authorised by law 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 letter of complaint with the identifying details of the complainant is exempt under section 23(1)(b).

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the 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 an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

09 February 2011