Whether the Council was justified in its decision to refuse a request for the name of an individual who made a complaint to the Council concerning silage leakage

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 August 2014, the applicants submitted a request to the Council for access to "all records in relation to someone who reported us early this year approx dates [DATE] 2014 for silage leakage". The Council granted access to ten records broadly relating to the complaint, and refused access to one record containing the identity of the complainant. By letter dated 23 September 2014, the applicants applied for an internal review of the decision to withhold the name of the person who made the complaint. The Council's internal reviewer issued his decision on 20 October 2014, affirming the initial decision to refuse access. On 23 October 2014, the applicants sought a review by this Office of the Council's decision.

During the course of the review, Mr Benjamin O'Gorman of this Office informed the applicants of his view that the Council was justified in refusing access to the name of the person who made the complaint. The applicants indicated that they do not accept Mr O'Gorman's analysis. Therefore I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to the Council's decision on the matter and its communications with this Office, and to the applicants' communications with this Office and the Council. I have also had regard to the provisions of the FOI Act and to the record in which the information sought is contained, a copy of which was provided to this Office for the purpose of the review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether the Council was justified in withholding the name of the individual who made the complaint to the Council.

Analysis and Findings

While the Council relied on section 26(1)(a) of the FOI Act to withhold the information sought, this Office takes the view that section 23(1)(b) is the more relevant exemption to consider. Section 26(1)(a) is more concerned with the protection of information given in confidence, whereas section 23(1)(b) is concerned with the protection of the source of certain information. It is important to note that this Office is entitled to consider an alternative exemption in this case as our reviews are accepted by the High Court to be "de novo" which in effect means we can look at cases afresh. I note that Mr O'Gorman of this Office has informed the applicants and the Council of our approach in this matter.

Section 23(1)(b) of the FOI Act provides that access to a record may be refused where, in the opinion of the head, its disclosure 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,".

This exemption provision is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the civil law, by providing information which might assist such bodies or agencies to perform their functions more effectively. For section 23(1)(b) to apply, three specific requirements must be met. The first is that release of the withheld information could reveal, whether directly or indirectly, the identity of 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
The second requirement of section 23(1)(b) is that the person whose identity may be revealed through the release of the information at issue must have given information to a public body in confidence. It is clear, given its statutory functions and obligations, that the Council must have access to information from as many sources as possible in dealing with water pollution incidents. The Council has informed this Office that the functions of its Environment Section, charged with the protection of the Environment under the Water Pollution Acts 1977-1990, are assisted by information provided by members of the public.

I accept that it is important for the Council to be in a position to receive such necessary information in confidence from members of the public. While the Council gave no explicit assurance of confidentiality to the complainant in response to the complainant's email, it is of the view that regardless of the form of the communication, the circumstances of the complaint itself imply confidentiality. I accept that argument. Accordingly, I find that the second requirement of section 23(1)(b) of the FOI Act has been met in the circumstances of this case.

Third Requirement
The third limb of the exemption at section 23(1)(b) refers to the requirement that the information received by the public body relates to the enforcement or administration of the civil law. The Council has informed this Office that the information received by the Council relates to the role of the Environment Section, one of whose functions is to investigate matters of water pollution, pursuant to Water Pollution Acts 1977-1990. Therefore, I am satisfied that the third requirement for the exemption set out at section 23(1)(b) of the FOI Act is met. I find accordingly.

Having found that each of the three requirements are met, I accordingly find that section 23(1)(b) of the FOI Act applies to the name of the individual who made the complaint to the Council.

The Public Interest
Section 23(1)(b) of the FOI Act is subject to 23(3) which provides that consideration must be given to the possibility that the public interest would, on balance, be better served by the release of the information at issue 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 in that the test in section 23(3) may be considered only where certain circumstances arise. Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by 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 breaches of the law. I am satisfied that no such circumstances arise in this case, and that section 23(3) does not apply.

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 to refuse access to the name of the individual who made the complaint to the Council.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator