Whether the Department was justified in its decision to refuse access to the name(s) of the individual(s) who made report to the Department about the applicant's livestock under section 42 (m)(i) 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

This application for review has its background in complaints the Department received about the applicant's livestock. On 28 June 2017, the applicant submitted a request under the FOI Act for the reports sent to the Department and the name of the person(s) who made the reports. On 20 July 2017, the Department issued a decision in which it refused access to the records it holds under section 35 of the FOI Act on the ground that they contain information given in confidence. On 7 August 2017, the applicant sought an internal review of the Department's original decision narrowing the scope to the name(s) of the individual(s) who made the complaints. On 21 August 2017, the Department decided to affirm the original decision, also relying on section 37 of the FOI Act. On 19 September 2017, the applicant sought a review by this Office of the Department's decision. 

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

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to the name(s) of the individual(s) who made complaints about the applicant to the Department.

Analysis and Findings

In its submission to this Office the Department relied on sections 30, 35(1)(a), 37(1) and 42 (m)(i) of the FOI Act to refuse access to the identity of the complainant(s). As only the identity of the complainant(s) is at issue in this case, it is my view that section 42(m)(i) of the Act is the more appropriate section to be considered. Section 42 (m)(i) acts to restrict the applicability of the FOI Act in certain circumstances and I therefore believe it appropriate to consider this provision first, before proceeding to consider sections 30, 35 and 37, if necessary.
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 first requirement is clearly met in this case, given that the request is for the name of the person who made the complaint.

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 Department stated that protection of health and welfare of animals is a top priority. The confidential nature of the helpline and email reporting is stressed at all times. It is explicitly stated on the Department-™s website that all animal welfare reports are processed in the strictest of confidence. The Department said the information contained in the record was given to it in confidence. It stated that it is important that such further similar information should continue to be given to assist the efforts in protecting animal welfare. It stated that it is important that the reporting mechanism in place which enables people to confidentially report suspicions of animal cruelty/neglect is maintained to protect both animals and those individuals who notify the matter.

The applicant stated he believes that the complainant submitted the complaint to the Department with ill intent. This Office accepts that bodies such as the Department 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 prejudice the flow of information from the public which bodies such as the Department rely upon to carry out their functions. Having regard to the nature of the information at issue and to the Department-™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 relates to the enforcement or administration of the law. The Department is charged with enforcing animal welfare standards under the Animal Health and Welfare Act 2013. 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 Department was justified in refusing the request for the identity of the individual(s) who made the complaint.  

In light of this finding, it is not necessary for me to consider whether section 30, 35 or 37 of the Act also apply.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the name(s) of the individual(s) who made complaints about the applicant, 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