Whether the Council was justified in its decision to refuse, pursuant to the provisions of section 23(1)(b) of the FOI Act, a request for the name of a person who submitted an objectionrelating to a specified grant of planning permission.

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

Background

On 20 June 2012, the applicant's Solicitors made a request to the Council, on behalf of the applicant's son, for the name of a person who had objected to a specified grant of planning permission. On 23 July 2012 the Council decided to grant access to the general details of a complaint it received relating to alleged non-compliance with a permission granted, but withheld details of the person who made the complaint under section 23(1)(b) of the FOI Act. The Council affirmed its decision following internal review on 10 August 2012 and also relied upon section 26(1)(a) of the FOI Act in refusing to disclose the identity of the complainant.

On 17 September 2012, the applicant, through his Solicitors, applied to the Information Commissioner for a review of the Council's decision and thereafter the applicant's son authorised the applicant (his father) to make such an application for review to the Information Commissioner on his behalf.

During the course of the review, the Council provided this Office with a copy of the record at issue. On 28 February 2013, Mr Maurice Kiely, Investigator, informed the applicant of his preliminary view that the Council had properly applied the exemption of section 23(1)(b) of the FOI Act to refuse access to the name of the person who submitted the complaint to the Council. Mr Kiely invited the applicant to make further submissions if he disagreed with his preliminary view but as none have been received I have decided to conclude this review by issuing a formal decision. In conducting this review I have had regard to the provisions of the FOI Acts, to the contents of the record concerned, to the correspondence between the Council and the applicant, and to the relevant submissions of the Council.

Scope of the Review

The scope of this review is concerned solely with the question of whether the Council was justified in deciding to refuse access to the name of the person who submitted a complaint to the Council in respect of a specified grant of permission.

Analysis and Findings

Section 23 (Law Enforcement and Public Safety)
The information withheld in this case comprises information relating to the identity of
the person who made the complaint to the Council. I consider section 23(1)(b) of
the FOI Act to be most relevant in this case. That section 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, reasonable 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, ..."

Section 23(1)(b) is an exemption provision aimed at ensuring that members of the public are not discouraged from co-operating with agencies engaged in the enforcement or administration of the civil law, by providing information which might assist such agencies to perform their functions more effectively. For the exemption to apply, three specific requirements must be met. The first is that the release of the withheld information would reveal directly or indirectly the supplier of the information. The second is that the information must have been given to the public body in confidence while the third is that the information
must have been supplied to the public body in relation to the enforcement or administration
of the civil law.

First Requirement
As the identity of the person who made the complaint to the Council is the only information at issue in this case, the first requirement under section 23(1)(b) is clearly met.

Second Requirement
In relation to the second requirement, the question I must consider is whether the
information was given to the Council in confidence. In its submission to this Office, the Council explained that it has always been its approach to protect the integrity of the planning enforcement process whereby the name of the complainant is treated as confidential but where the nature of the complaint is released. It argues that this approach has been guided by the "Guidelines for Planning Authorities" issued by the [then] Department of the Environment, Heritage and Local Government in June 2007 under the Planning and Development Act 2000. Section 10.3.11 of the Guidelines, which is concerned with promoting transparency in relation to enforcement actions, provides that all relevant documentation relating to enforcement actions should be readily available to all parties directly involved and to the general public, "except where ... this would reveal the identity of complainants..." [my emphasis].

It is clear to me, in considering the statutory functions involved, that it is necessary for Council officials, in the course of their duties, to be in a position to receive necessary information from members of the public. I recognise that much of the information that Planning Authorities such as the Council receives in relation to the enforcement or administration of planning legislation is received from people who do not wish to be identified. It is arguable that if people providing information to the Council is such cases were not reassured as to confidentiality, the information gathering process would be compromised. I accept that without an assurance or understanding that the information being provided was provided in confidence, such persons may be reluctant to provide information. Accordingly, and having regard to the Council's submission on the matter, I find that the second requirement of section 23(1)(b) has been met.

Third Requirement
Finally, the Planning and Development Acts 2000 to 2010 imposes a legal obligation on a Planning Authority such as the Council, in the area in question, to administer and enforce that legislation. I am satisfied that the information given in the record concerned relates to the enforcement or administration of the civil law I find, therefore, that the third requirement of section 23(1)(b) has been met.

The Public Interest
However, that is not the end of the matter as section 23(3) provides that section 23(1)(b)
does not apply in certain specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions under the FOI Act in that the test in section 23(3) may be considered only where certain circumstance arise.

Those circumstances are where the record/s disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance of a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection, or investigation of breaches of the law. I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply. On this basis, all of the requirements for the application of section 23(1)(b) have been satisfied.

I find, therefore, the Council was justified in its decision to refuse access to the information sought on the ground that section 23(1)(b) applies. Having so found, it is not necessary to consider any other exemption claimed by the Council.

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 the Council in this case.

Right of Appeal

A party to a review, or any other person affected by the decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
9 April 2013