Case Number: 170378

Whether the HSE was justified in its decision to withhold, under section 42(m)(i), certain identifying information relating to an individual who made a complaint concerning the applicant's business

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 1 June 2017, the applicant, through his solicitors, submitted a request to the HSE for all files held in respect of him and his business. On 21 June 2017, the HSE issued a decision in which it granted access to the records sought with the redaction of certain information from two of the records under section 42 (m)(i) of the FOI Act to protect the identity of a person who made a complaint concerning the applicant's business. By letter dated 30 June 2017, the applicant sought an internal review of that decision. The HSE issued an internal review decision to the applicant by letter dated 18 July 2017 in which it affirmed its original decision. On 24 July 2017, the applicant applied to this Office for a review of the HSE's decision.

I have decided to bring this case to a close by way of a formal, binding decision. In carrying out this review, I have had regard to the correspondence between the HSE and the applicant and to the communications between this Office and both the applicant and the HSE on the matter.

Scope of Review

This review is concerned solely with whether the HSE was justified in its decision to redacted certain information from records relating to the applicant's business under section 42(m)(i) of the FOI Act.

Analysis and Findings

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 supplier of the information. The second is that the information must have been given in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First Requirement
The information redacted from the records in this case comprises the name and contact details of a person who made a complaint to the HSE and a small amount of other information, the release of which, in my view, could reasonably be expected to lead to the revelation of the identity of that person. I am satisfied, therefore, that the first condition has been met.

Second Requirement
The second requirement for section 42(m)(i) to apply is that the provider of information must have provided that information in confidence. In its submission to this Office, the HSE stated that the complainant specifically requested that hi/her details not be given to the operator of the business. It stated that its Environmental Health Service has an obligation in the interests of public health to ensure that all complaints, including anonymous complaints, are fully investigated. It argued that section 42(m)(i) is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement and administration of the law and that the disclosure of such confidential information would be detrimental to the ongoing enforcement of food safety legislation.

On the other hand, the applicant argued that the complaint made was malicious in nature. Presumably his argument is that such complaints should not be treated as having been made in confidence. While the applicant provided no evidence to support his contention that the complaint was malicious, this Office accepts that bodies such as the HSE act upon every report such as the type at issue in good faith and that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could reasonably be expected to prejudice the flow of information which bodies such as the HSE rely upon to carry out their functions. Having regard to the nature of the information at issue and to the HSE's position on the matter, I accept 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 HSE Environmental Health Service is an enforcement body for the purposes of food safety legislation under a Service Contract between the Food Safety Authority of Ireland and the HSE. Its Environmental Health Officers are empowered, under the Food Safety Authority of Ireland Act 1988 and European Communities (Official Control of Foodstuffs) Regulations 2010, to enter any premises in order to carry out inspections. Therefore, I am satisfied that the third requirement is met in this case.

Finding

Having found that each of the three requirements are met, I find that section 42(m)(i) of the FOI Act applies and that the HSE was justified in refusing the request for the identity of the individual who made the complaint.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to redact certain information from the records relating to the applicant's business under section 42(m)(i).

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