Whether the Council was justified in refusing the applicant access to a copy of a complaint purportedly furnished by him to Leitrim County Council in relation to alleged unauthorised development

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review has its origins in a letter dated 9 December 2014 from the Council to the applicant, acknowledging a written complaint, purportedly made by the applicant, alleging unauthorised development at a certain address. The applicant contends he made no such complaint. On 27 February 2015, the applicant, through his solicitors, sought a copy of a letter of complaint. In its decision of 6 March 2015, the Council refused access to the request under section 35(1)(a) of the FOI Act on the ground that the information contained in the record was given in confidence to the Council.

On 9 March 2015, the applicant sought an internal review of the decision of the Council. On 31 March 2015 the decision to refuse the request was upheld by the Council on internal review. On 16 April 2015 the applicant sought a review by this Office of the Council's decision.

I note that during the course of this review Mr Benjamin O'Gorman of this Office informed the applicant of his view that the Council was justified in its decision to refuse access to the record at issue. The applicant indicated he wished to proceed to a decision.

Consequently, I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant record, to the correspondence between the applicant and the Council, to the correspondence between the applicant and this Office, and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is concerned solely with whether the Council was justified in refusing access to the record at issue.

Analysis and Findings

I should state at the outset that the applicant is adamant that he did not submit the complaint of unauthorised development to the Council. Indeed, he has clarified to the Council that he is seeking access to the record in an effort to establish who made the complaint in his name. Furthermore, the Council's internal reviewer explained in his internal review decision that he was satisfied that the signature contained in the record was not the same as the signature appended to the signed authority submitted in respect of the FOI request. Accordingly, I have considered the Council's argument for refusing the request on the basis that the record was not submitted by the applicant, as both parties appear to accept this to be the case. I should also add that, in accordance with section 13(4), I cannot take account of any reasons that the applicant has given for making the FOI request.

While the Council relied on section 35(1)(a) of the FOI Act to withhold the record in question, it also cited section 42(m)(i) in its submission to this Office. Having examined the record at issue, it is my view that section 42(m)(i) is the more relevant section to consider. Section 42(m)(i) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession.

This restriction 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 law. For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to 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 law.

First requirement
The record at issue is a completed complaint submission form in relation to alleged unauthorised development. The complaint details have been completed by hand and the form contains a signatory bearing the name of the applicant. The applicant's name and address are cited as the name and address of the person making the complaint. Given the level of detail in the record about the alleged unauthorised development, it would appear reasonable to assume that the person who submitted the complaint is familiar with the area and its residents. Given also that the details of the complaint are handwritten, I am satisfied that the release of the record could reasonably be expected to lead to the revelation of the identity of the person who made the complaint. Thus, I find that the first requirement is met.

Second Requirement
The second requirement for section 42(m)(i) to apply is that the information must have been given to the Council in confidence. The Council considers that the person who submitted the complaint had an expectation of confidentiality when doing so. It draws attention to the fact that the submission form on which the complaint was made clearly states that "The Planning Authority shall always seek to protect persons making a complaint ..." and that "... all information will be treated as confidential ...". On the other hand, the applicant argues that the complaint could not have been made in confidence as it was "maliciously and fraudulently made" in his name.

The Council argues that the receipt of information relating to alleged unauthorised development is critically important to it and the future receipt of such information would be prejudiced if the identity of complainants were revealed. It argues that if the flow of information is cut off, the Council's ability to detect unauthorised development and other illegality it has responsibility for regulating would be greatly impaired. 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 planning 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.

In my view, while it is unfortunate for the applicant that the complaint was made in his name, it seems clear that the complainant did not wish to disclose his/her identity. If the complainant had strong concerns about his/her identity being disclosed, notwithstanding the assurances of confidentiality on the submission form, the complaint could have been made anonymously, although I note that the submission form indicates that the Council is only obligated to follow up on written complaints where the complainant's name and address are given. This Office has previously considered the question of whether complaints that may have been made maliciously could be considered to have been made in confidence. This Office accepts that planning authorities generally treat complaints of alleged unauthorised development in good faith. Indeed, when one considers the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken, the difficulty for the Council in handling such reports in any other manner become apparent.

I accept that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public and that the Council relies upon such information to carry out its functions. In the present case I give significant weight to safeguarding the inherent importance in protecting the free flow of information to the Council. In any event, I note that in this case the Council considered the complaint made in this case to have validity, notwithstanding any issues surrounding the identity of the complainant. Accordingly, I accept the Council's position that the information was given in confidence in this case and I find, therefore, that the second requirement of section 42(m)(i) of the FOI Act has been met.

Third Requirement

The third limb of the restriction at section 42(m)(i) refers to the requirement that the information received by the FOI body relates to the enforcement or administration of the law. The Council has informed this Office that it is charged with the enforcement of the Planning Acts. Therefore, I am satisfied that the third requirement for the restriction set out at section 42(m)(i) of the FOI Act is met.

Having found that each of the three requirements are met, I find that, under section 42(m)(i) of the FOI Act, the Act does not apply to the record at issue.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby affirm the decision of the Council to refuse access to the record at issue 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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator