Whether the Council was justified in refusing the applicant access to a copy of a complaint furnished to the Council in relation to an alleged unauthorised development

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

Background

This review has its origins in a complaint made to the Council alleging an unauthorised development at the applicant's address. On 16 February 2015, the applicants sought a copy of "all records in relation to representation [representation reference] including inter alia; enforcement representation submitted, identity and qualifications of the party submitting, details of verification and analysis under 152(1)(a) of the Act." In its decision of 10 March 2015, the Council identified one record relevant to the applicant's request, and refused access to this record under sections 35(1)(a) and 37(1) of the FOI Act. It relied on section 35(1)(a) on the ground that the information contained in the record was given in confidence to the Council, and relied on section 37(1) on the basis that the record contains the personal information of third parties.

On 13 March 2015, the applicants sought an internal review of the Council's decision. On 2 April 2015 the decision to refuse the request was upheld by the Council on internal review. On 20 May 2015 the applicants 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 applicants during a telephone call of his view that the Council was justified in its decision to refuse access to the record at issue on the basis that the information had been given to the Council in confidence. I note that the applicant did not accept this position and also proposed that the record be released with the personal information of the complainant redacted.

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.

Preliminary Matters

During the course of this review, the Council identified a further seven records relevant to the applicants' request, and made a decision to release four records, redact information in another two records, and refuse access to one record. As the Council did not consider these records in its original decision of 10 March 2015, or its internal review decision of 2 April 2015, there is no decision of the Council in relation to these records for this Office to review. Consequently, the scope of this review is as is outlined above. Should the applicants be dissatisfied with the Council's decision in relation to the seven newly identified records, it is open to them to seek an internal review of that decision, and then, should they remain dissatisfied, appeal the Council's internal review decision to this Office, in accordance with the FOI Act.

It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council of satisfying this Office that its decision to refuse access to the record at issue was justified.

Analysis and Findings

The record at issue consists of a complaint alleging an unauthorised development at the applicant's address. The record comprises a one-page covering letter to the Council, a two-page completed handwritten "Enforcement Representation Form", a one-page typed submission detailing the alleged non-compliance, and two area maps (6 pages in total).

Section 42(m)(i) of the Act
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) of the Act in its submission to this Office. 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 contains the complainant's name, signature, telephone number and address. Therefore, it is clear that release of the record would reveal the identity of the complainant. 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. Part 12 of the Enforcement Representation Form asks: "Do you have an objection to the disclosure of - a) your identity, b) other information given in this form." For both 12 a. and 12 b. the complainant ticked the box on the form that they had no objection to the disclosure of their identity or the other information in the form. During the course of this review, the Council indicated that it had contacted the complainant who stated that they had made the complaint on the basis of an assurance of confidentiality given by the Planning Department of the Council. The Council said the complainant also stated that they had been informed that the release of their identity may only arise in the context of a prosecution and had ticked the boxes at 12 on that basis.

Therefore, it seems to me that there is, at the very least, confusion between the parties in relation to whether the identity of the complainant is held in confidence. In relation to the other information in the correspondence sent by the complainant to the Council, I am satisfied that most of this does not reveal or lead to the revelation of the identity of the complainant. Given that the applicant indicated to this Office that he was open to the option of having the record released in redacted form with the name and address of the complainant deleted, it is not necessary to consider the identity issue further. I do not consider that the requirements of section 42(m)(i) are met in relation to the main parts of the record i.e. the substance of the complaint.

I find therefore, that section 42(m)(i) does not apply and that, subject to my findings on personal information below, the remainder of the record falls to be released.

Other Exemptions claimed by the Council
The Council also relied on section 35(1)(a) of the Act in refusing access to the record at issue in this case. Given my findings above on the confidence question it is not necessary for me to consider this exemption further.

In its submissions to this Office the Council contends that sections 30(1)(a), 30(1)(b), 32(1)(a)(i) and 32(1)(a)(ii) also apply in this case and suggest that its decision should be upheld in the light of the Council's policy not to release such information, its obligation to the public contained in its policy, the damage which could be caused to this source of information and the individual complainant's understanding of the position. Having regard to the burden of proof under section 22(12)(b), I am not satisfied that the Council has justified its position under sections 30 and 32 of the Act.

Personal Information - Section 37 of the Act
The only issue left for me to consider is whether the record contains the personal information of third parties.

Section 37(1)
As noted above, the applicant indicated to Mr O'Gorman that he would be satisfied to get a copy of the record with the name and address of the complainant redacted. Notwithstanding this, the record also contains a small amount of other personal information about the complainant, including a mobile phone number and a comment relating solely to personal matters relating to that individual, which I will now consider.

Section 37(1) of the FOI Act provides that, subject to the provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. Personal information is defined in section 2 of the Act as including information that would, in the ordinary course of events, be known only to the individual or members of the family, or friends of the individual. Having examined the record, I am satisfied that section 37(1) applies to the complainant's mobile phone number and personal comment. The effect of section 37(1) is that a record disclosing personal information of a third party or third parties cannot be released to another person unless one of the other relevant provisions of section 37 applies - in this case sections 37(2) and 37(5).

Section 37(2)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the information contained in the record does not relate to the applicant; (b) that the third parties have not consented to the release of that information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 37(2) does not apply to the details at issue here.

Section 37(5)
Section 37(5) of the FOI Act provides that a request, which would fall to be refused under section 37(1), may still be granted where, on balance -

"(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or
(b) the grant of the request would benefit the individual aforesaid,"

In my view the grant of the request would not benefit the individual or individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

In relation to the issue of the public interest under section 37(5)(a) it is important to take note of the obiter comments on the question of public interest of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- the Information Commissioner(more commonly referred to as The Rotunda Hospital -v- the Information Commissioner) ([2011] IESC 26). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

Given the content of the personal information at issue, I am satisfied that there is no public interest in releasing this information that outweighs the public interest in the right to privacy of the individual to whom the information relates. Thus, I am satisfied that section 37(5)(a) does not apply.

Accordingly, I find that the Council was justified in refusing access to the complainant's personal information as identified above under the provisions of section 37(1) of the FOI Act.

Summary

In summary, I find that the Council was not justified in refusing access to the record at issue in this review, except in relation to the complainant's name, address, mobile phone number and personal comment as outlined above. I therefore direct the release of the record subject to the following redactions:-

Page 1 (cover letter) - Complainant's name, address, signature and mobile phone number.
Page 2 (Enforcement Representation Form) - Part 5 of the form following "December 2008" to end of Part 5.
Page 3 (Enforcement Representation Form) - Entire text in Parts 9 and 10 (name, address and phone number) and the complainant's signature at Part 12.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby vary the decision of the Council to refuse access to the record at issue in this case. I find that the Council was not justified in refusing access to the record at issue and direct that the Council release the record in part, redacting the personal information outlined above.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator