Whether the Council was justified in its decision to partially refuse a request for access to records relating to the seizure and destruction of the applicant's horses under section 32 of the FOI Act

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

The applicant applied to the Council on 18 February 2015 for all records relating to the impounding and destruction of his horses. In its decision dated 19 March 2015 the Council part-granted the applicant's request. Access to four records was withheld under sections 32(1)(b) and (c) of the FOI Act.

The applicant sought an internal review of that decision by letter dated 10 April 2015. In its internal review decision dated 30 April 2015, the Council affirmed its original decision. By letter dated 11 June 2015, the applicant sought a review by this Office of the Council's decision.

In conducting this review, I have had regard to the correspondence between the applicant and the Council and to the correspondence between this Office and both the applicant and the Council. I have also had regard to the contents of the records at issue, copies of which have been provided to this Office by the Council for the purposes of this review. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records provided to this Office for the purposes of the review.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the four records at issue (namely records 5.1, 5.2, 5.4 and 7).

Preliminary Matter

Section 18 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, in the case of written records, this Office takes the view that neither the definition of a record nor the provisions of section 13 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, and depending on the contents of the records and the substance of the possible extracts, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

It is clear from the Council's submission to this Office that it is concerned solely with withholding the identity of the person who made a complaint concerning the applicant's horses. Accordingly, I will firstly consider the applicability of section 42(m) of the FOI Act to the records at issue. That section 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

(i) 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, or
(ii) any other source of such information provided in confidence 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) 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 records at issue relate to the seizure and destruction of two horses and contain details relating to the identity of the complainant. Having carefully considered the contents of the records, I am satisfied that the disclosure of the following information in the records at issue could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information:

- The text in the column headed Comments in record 5.1
- The entirety of record 5.2
- All text between "Good" on line 5 and "Contacted by" on line 9 in record 5.4
- The text of the continuum of emails in record 7

Thus, I find that the first requirement is met in relation to the sections of information identified above.

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. It is arguable that if people providing information to the Council in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. I accept that without an assurance or understanding that information being provided was provided in confidence, such persons may be reluctant to provide information. Having regard to the nature of the information at issue and to the contents of the Council's submission on the matter, I consider that the information was given in confidence in this case and I find that the second requirement has been met.

Third Requirement

The third requirement is that the information received by the FOI body relates to the enforcement or administration of the law. The Council is charged with the enforcement of bye laws relating to animal control. Therefore, I am satisfied that the third requirement is met in this case

Having found that each of the three requirements are met, I find that that section 42(m) applies to the information identified above. Accordingly, having regard to the provisions of section 18 of the Act, I find that the Council was justified in deciding to refuse access to records 5.1, 5.2 and 7 in their entirety and in refusing access to all text between "Good" on line 5 and "Contacted by" on line 9 in record 5.4. I find that section 42(m) does not apply to the remaining information in record 5.4.

Following my finding that section 42(m) does not apply to that information, I must consider whether the Council was justified in refusing access under sections 32(1)(b) and (c) of the FOI Act. Given that the Council was concerned solely with withholding the identity of the person who made the complaint and given that the disclosure of the remaining information in record 5.4 would not result in the disclosure of the identity of the complainant, I am satisfied that the Council was not justified in refusing access under section 32.

In summary, therefore, I find that the Council was justified in refusing access to records 5.1, 5.2 and 7 in their entirety and in refusing access to all text between "Good" on line 5 and "Contacted by" on line 9 in record 5.4 but that it was not justified in refusing access to the remaining information contained in record 5.4.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2015, I hereby I hereby vary the Council's decision.

I uphold the decision of the Council to refuse access to records 5.1, 5.2 and 7 in their entirety and to all text between "Good" on line 5 and "Contacted by" on line 9 in record 5.4. I annul the decision of the Council in relation to the remainder of record 5.4 and direct its release to the applicant.

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.

Stephen Rafferty
Senior Investigator