Case Number: 170117

Whether the Council was justified in its decision to refuse access to a record which would reveal the identity of the person(s) who filed a report or made a complaint against the applicant regarding an 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

On 19 December 2016, a request was submitted to the Council on the applicant's behalf for access to the name and address of the person or persons who filed a report or made a complaint to the Council against the applicant regarding an alleged unauthorised development. The applicant enclosed a letter that was apparently released to him previously that had the name and address of the authors, and certain other information, redacted.

On 4 January 2017, the Council refused the request under sections 32(1)(a)(ii), 35(1)(a), and 42(m) of the FOI Act. The applicant sought an internal review of that decision on 18 January 2017, following which the Council affirmed its decision. On 7 March 2017, the applicant sought a review by this Office of the Council's decision.

In carrying out this review, I have had regard to the correspondence between the Council and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to the name and address of the person or persons who filed a report or made a complaint against the applicant regarding an alleged unauthorised development.

Analysis and Findings

The Council relied on sections 32(1)(a)(ii), 35(1)(a), and 42(m) of the FOI Act to withhold the record in question. As section 42 serves to restrict the applicability of the FOI Act in certain circumstances, I have considered this provision first.

Section 42(m)(i)
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. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

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 person who provided information. The second is that the provider of information must have provided that information to the FOI body in confidence, while the third is that the information provided to the FOI body must relate to the enforcement or administration of the law.

First requirement
The first requirement is clearly met in this case, given that the request is for the name and address of the person or persons who filed a report or made a complaint.

Second Requirement
The second requirement is that the provider of information must have provided that information to the FOI body 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.

In its submission to this Office, the Council stated that the letter submitted by the complainants contains a clear statement that they do not want their identities revealed. It further stated that the circumstances surrounding the receipt of complaints regarding unauthorised development requires an understanding that the identities of complainants will not be disclosed. According to the Council, if this understanding of confidentiality did not exist, people would be reluctant to provide the Council with information regarding possible breaches of planning and development legislation. In that event, according to the Council, the supply of information that is essential for the Council's detection and regulation of unauthorised development would be seriously compromised. In the Council's view, it is absolutely vital that this flow of information be protected in order that the Council may continue to effectively discharge its responsibilities under planning and development legislation.

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 Council's submission, 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 provided to the FOI body relates to the enforcement or administration of the law. The Council is charged with the enforcement of legislation relating to planning and development, including the control of unauthorised development under the Planning and Development Acts 2000-2015 and the Planning and Development Regulations 2001 to 2016. 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 section 42(m)(i) the FOI Act applies and that the Council was justified in refusing the applicant's request for the name and address of the person(s) who made the complaint of alleged unauthorised development.

In light of this finding, it is not necessary for me to consider whether sections 32 or 35 of the Act apply.

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 name and address of the person or persons who filed a report or made a complaint against the applicant regarding an alleged unauthorised development, 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.

Stephen Rafferty
Senior Investigator