Case Number: 160422

Whether the refusal of access by the Council to records relating to complaints of anti-social behaviour is justified under sections 32(1)(a)(i), (ii) and (iii), 35(1)(a), 37(1) and 42(m)(i) 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 26 July 2016 the applicant made an FOI request to the Council for: "information on the number of complaints of anti-social behaviour that the Council has received this year; a breakdown of the areas the complaints related to - i.e. the town/village/area/municipal district; and a copy of all the complaints, with the identities of the complainant redacted, if necessary".

By letter dated 24 August 2016, the Council granted access to information on the number of complaints; the names of the relevant municipal districts and the nature of the alleged anti-social behaviour complained of. It withheld access to the remaining information on the ground that it was exempt under sections 29(1)(a), 30(1)(a), 32(1), 35(1)(a) and 42(m)(i) of the FOI Act. On 26 August 2016, the applicant applied for an internal review. By letter dated 16 September 2016, the Council issued its internal review decision. It varied its original decision by releasing the names of towns/villages where it considered that they would not reveal the identities of the complainants or the alleged perpetrators. It withheld access to the remaining information, on the ground that it was exempt under sections 32(1)(a)(i), (ii) and (iii), 35(1)(a), 37(1) and 42(m)(i) of the FOI Act. On 1 October 2016 the applicant applied to this Office for a review of the Council's decision.

In conducting this review I have had regard to the Council's decision on the matter; the Council's communications with the applicant and with this Office; the applicant's communications with the Council and with this Office; the content of the withheld records, provided to this Office by the Council for the purposes of this review; and to the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Council to satisfy me that its decision is justified. In this regard, I should mention here that this Office's consideration of the review was assisted by the Council's clear and comprehensive responses to the issues raised.

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 envisage or 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, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Scope of the Review

The question for this review is whether the withheld information is exempt from release under sections 32(1)(a)(i), (ii) and (iii), 35(1)(a), 37(1) and 42(m)(i) of the FOI Act.

Analysis and Findings

At the outset, I should note that the applicant has drawn my attention to the fact that other County Councils have released similar information to him in other FOI requests. However, I can only decide this review on the material before me and having regard to the relevant provisions of the FOI Act. In that regard, I agree with the Council's submission that one "must consider each case on its own merit and the decision in any particular case will depend on the facts and circumstances of that case".

Section 42(m)(i) - Restricted records

It is appropriate to address this section first, as it goes to the issue of jurisdiction. Section 42(m)(i) provides that the FOI 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

In relation to the first requirement, the records disclose the names and addresses of the complainants and the alleged perpetrators of anti-social behaviour. The applicant queries how a person's identity could be revealed by specifying a town or village, since villages/towns are inhabited by hundreds, if not thousands, of people. Therefore during the review and having regard to section 18 of the FOI Act, the Investigator sought to establish whether it was practicable to redact such personal details, such that the identities of the people concerned were not disclosed.

The Council submits that since its anti-social behaviour strategy is restricted to certain areas, this limits the potential locations of the complainants. It says that in certain administrative areas the number of potential dwellings would be in single digits, increasing the possibility of revealing the location and thereby the complainant's identity. In addition, it points to the fact that many of the complaints contain certain identifying pieces of information which, together with the location, could lead to the identification of the complainant. Finally, it says that many of the locations are small places where everybody knows one another.

Having examined the content and context of the records, I accept that releasing the withheld information, even with the names and addresses redacted, could reasonably be expected to reveal, directly or indirectly, the suppliers of the information concerned. I reach this conclusion having particular regard to the Council's submissions on the areas within its remit and the fact that the information contains certain identifiers other than the names and addresses. I accept that the overall population in the areas concerned is very small and that, of its nature, the information relates to local authority housing only. While I cannot describe the detail of the potential identifiers in the text of the complaints, I am satisfied that these are present in the records and often involve very specific incidents. I must also bear in mind that release under FOI is treated as release to the "world at large". I therefore accept that the first requirement has been met.

Second Requirement

In relation to the second requirement, the Council submits that complainants provide information to it in confidence and on the understanding that the information and their identities and the identities of the alleged perpetrators, will be treated by the Council in confidence. It points to its strategy on anti-social behaviour, which states that "all anti-social behaviour information will be treated in confidence and relevant advice from statutory authorities will be treated as confidential information". I note that initial complaint forms are marked "CONFIDENTIAL" at the end, while some complainants expressly state that they expect that their complaint will be treated in a confidential manner. In any event, given the particular content of the information - people complaining about their neighbours' behaviour as opposed to, for example, planning issues - I would expect that such complaints are made in confidence. Having regard to all of the above, I accept that the information was given to the Council in confidence and the second requirement is thereby met.

Third Requirement

In relation to the third requirement, the Council refers to housing legislation which gives it powers to address anti-social behaviour and indeed requires it to draw up a strategy on this. By their very nature the complaints relate to the enforcement or administration of the law on anti-social behaviour by the Council. I therefore accept that the third requirement is met.

Accordingly, I find that the Council is justified in refusing access to the records, under section 42(m)(i) of the FOI Act.

In view of this finding, it is not necessary for me to consider sections 32, 35 or 37 of the FOI Act.

For completeness, I should note that the applicant made submissions about the public interest in releasing the records. However, as section 42 contains no public interest balancing test, since it puts this type of information outside of the FOI Act, I do not consider that I can address these submissions.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision to refuse access to the records, under section 42(m)(i) of the FOI Act.

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