Whether the Council was justified in its decision to refuse access to records containing the name of the person who made a complaint about a property owned by the applicant on the basis of sections 30(1)(b), 35(1) and 37(1) of the FOI Act

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

On 17 February 2015, the applicant made an FOI request to the Council seeking access to all records in relation to a property owned by him. On 19 February 2015, the Planning Department of the Council issued a decision partially granting the request. It refused access to parts of records on the basis of sections 35(1)(a) and 42(m) of the FOI Act. A "second decision" issued on 4 March 2015 concerning records held by the Environment Health Officers' Section, the Law Department and Dublin Fire Brigade (DFB). This decision refused access to certain records on the basis of sections 30(1)(b), 31(1)(a), 35(1) and 37(1) of the FOI Act. These decisions were upheld in the internal review decision of 30 March 2015.

The submission from the Council and the views of the applicant have been received. I therefore 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 application from the applicant, the submissions from the Council and to correspondence between the applicant and the Council. I have also had regard to the applicant's arguments, in support of release of the records, in his telephone conversation with the Investigator in this case on 16 March 2016. I have examined the contents of records provided to this Office by the Council for the purposes of this review and had regard to the provisions of the FOI Act.

Scope of the Review

In his internal review request of 10 March 2015, the applicant referred only to the decision of 4 March 2015 (the "second decision") and sought a review of the refusal of access insofar as it related to the DFB records. In his application to this Office dated 2 September 2015, the applicant referred to the decision not to grant full access and to both planning and DFB complaints. However, in accordance with section 22(1) of the FOI Act, the Commissioner's review must be confined to the decision taken by the FOI body on the issues raised in an internal review application, as made under section 21 of the Act. I note that in his internal review request of 10 March 2015 the applicant sought a review of the DFB records only; therefore, this review is concerned solely with those records. The issue in this review is whether the Council was justified in its decision to refuse access to the withheld DFB records on the basis of sections 30(1)(b), 35(1) and 37(1) of the FOI Act.

Analysis and Findings

It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council to satisfy the Commissioner that its decision to refuse access to the records was justified.
The withheld part of the records at issue consists of the name of the person who made a complaint to the Council concerning the property owned by the applicant. The Council relied on sections 30(1)(b), 35(1) and 37(1) of the FOI Act to withhold the records in question. It is my view that section 42(m)(i) of the Act is the more appropriate section to be considered.

Section 42(m)(i) of the Act
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 FOI body in confidence, while the third is that the information must have been supplied to the FOI body in relation to the enforcement or administration of the law.

First requirement
The records contain the complainant's name and email address. Therefore, it is clear that release of the records 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. 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. The Council said that it is its practice to treat such complaints as confidential. I accept that without an assurance or understanding that information being provided was provided in confidence, such persons may be reluctant to provide information.

The applicant contends that he knows the identity of the complainant. Whether that is the case is not, it seems to me, particularly relevant. Release under FOI is taken as release "to the world at large". The applicant is of the view that the complaints made to the Council were made maliciously by a person who has taken a legal case against him and his insurance company and therefore the complaints cannot be confidential. The applicant enclosed an Enforcement Complaints Form for Cork City Council (CCC) with his application to this Office. He drew attention to note number 3 on this form which states that a person making written malicious complaints cannot expect that the records of his complaint will be treated in confidence. The applicant is of the view that the complaint was not made in good faith. He asserts that the complainant has taken a case against the applicant and his insurance company in relation to an accident at the applicant's rented property. However, I have no evidence to support the view that the alleged insurance claim and the making of the complaint are linked. Even if I had, it is not within the jurisdiction of this Office to investigate and make findings on such allegations. The fact that CCC has a particular policy in regard to "malicious" complaints has no bearing on this case. It is difficult to see how it can be proven to a Council that a complaint is indeed malicious. The applicant put forward several arguments including that the Council's investigation found no fault with his property. While the Council made a finding that the applicant was not in breach of legislation, it does not necessarily follow that the complaints made were malicious. Whether a complaint proves to be unfounded does not, in itself, undo the confidential basis on which the Council receives such information. Having regard to the nature of the information at issue and to the Council's position 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 legislation relating to fire safety. 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, under section 42(m)(i) the FOI Act does not apply to the part of the records at issue.

Other Exemptions claimed by the Council
The Council also relied on other sections of the Act in refusing access to the records at issue in this case. Given my findings above on section 42(m)(i) it is not necessary for me to consider the exemptions.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access to the withheld parts of the records on the basis that, under section 42(m)(i), the Act does not apply to them.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator