Whether the Council was justified in refusing access to the personal details of a member of the public who made a complaint about road signage under section 35 of the FOI Act.  

19 February 2018

Background

On 4 May 2017 the applicant sought access to an unredacted copy of an email dated 7 January 2015.  The applicant specifically sought details of the sender of the email.  The Council decided to refuse access to the redacted information on the basis of section 35(1)(a) of the FOI Act.  The applicant sought an internal review of that decision and on 28 June 2017 the Council upheld the original decision.  On 30 June 2017 the applicant applied to this Office for a review of the Council's decision. 

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the Council and the applicant as described above. I have also had regard to the correspondence between this Office and both the Council and the applicant on the matter, and to the contents of the record at issue.

Scope of the Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to the redacted portion of an email dated 7 January 2015 on the basis of section 35 of the FOI Act. 

Preliminary Matter

The applicant has indicated his dissatisfaction with the fact that the Council removed a road sign on the basis of the email, which stated that, in the author's view, the signage was dangerous and could lead a driver who is used to driving on the right to instinctively turn into on-coming traffic.  I wish to note at the outset that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, or to investigating complaints against a public body. This review, conducted pursuant to section 22 of the FOI Act, is confined to reviewing the decision of the Council to refuse access to part of the record sought.

Secondly, 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. 

Analysis and Finding

The redacted details sought by the applicant include the name of the sender; their email address; mobile phone number and postal address.  While the Council refused access to the information sought on the basis of section 35 of the FOI Act, it seems to me that the question arises as to whether or not section 42(m)(i) of the FOI Act is relevant here.  If that section is deemed to be applicable, it would mean that the FOI Act does not apply to the record at issue.  I will therefore deal with the relevance of this section before considering any possible applicable exemptions. 

Section 42(m)(i) - Restricted records
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 redacted information discloses the name, address and phone number of the sender of the email to the Council.  The applicant accepts that it is a given that if the information is released that this requirement would be met. 

Second Requirement
In relation to the second requirement, the applicant states that nowhere on the redacted email is it marked private and confidential; neither was any request for anonymity made.  He states that the email is openly addressed to the Roads Manager of Kildare County Council and to the NRA generally.  He notes that there is neither a confidentiality statement nor any indication or request by the complainant in the email that it be treated as such. 

During the course of this review, the investigator assigned to this case contacted the Council and asked if the sender of this email objected or consented to the release of the redacted details.  The Council contacted the sender, who responded that they did not consent to the release of the redacted information. 

I accept that the email is not marked private and confidential; however, I do take into account the wishes of the sender of the email.  This person is best placed to clarify if they wished their details to be released or not and in this case has confirmed that they do not consent to the release of their information.  I accept that public bodies such as the Council rely on information from the public in order to carry out certain functions and that even where the motive of individual complainants might be called into question, it is important that the flow of confidential information from the public is not prejudiced.  In all the circumstances, I accept that the second requirement is met. 

Third Requirement
In relation to the third requirement, the applicant states that this case involves no enforcement or administration of law.  He notes that there is planning permission in place for the signposts in question and that therefore there is no longer any law to enforce or administer.  He states that the writer of the email was not reporting on or providing information pertaining to any contravention of the law and/or planning permission.  He goes on to ask if any citizen of no qualification can make an unsubstantiated observation and have a sign removed, and relies heavily on the subsequent actions taken by the Council and their handling of his requests for information regarding the signs removal.  The applicant also made several submissions regarding the motive of the sender of the email. 

I think that it is important here to reiterate my observation above that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, or to investigating complaints against a public body.  How the Council reacted in response to this email is not relevant to whether it can be said to be relating to the "enforcement or administration" of the law.  Once a member of the public provides such information to a public body, they are not responsible for how that public body acts on the information.  Neither is it a function of this Office to consider such matters.  The question before me is solely whether or not the requirements of section 42(m)(i) have been met. 

What I must consider is whether or not the information relates to the enforcement or administration of law.  In my view, information relating to signposts and their positioning can be said to relate to the law generally on roads maintenance and safety, including the provisions of the Roads Act.  That is not to say that there must be a contravention of such law for section 42(m)(i) to apply.  The information must relate to its enforcement or administration.  I consider that an observation that a sign may be potentially dangerous can be said to relate to the enforcement and/or administration of the law generally regarding road safety and maintenance, including control of signage.  I note that many of the functions of the National Roads Authority in relation to national roads may be delegated to the relevant roads authority.  I therefore accept that the third requirement is met. 

Accordingly, I find that the Council is justified in refusing access to the redacted information in the email dated 7 January 2015, under section 42(m)(i) of the FOI Act.

In view of this finding, it is not necessary for me to consider any additional sections of the FOI Act.

For completeness, I should note that the applicant made submissions regarding the public's right to know the identity of the individual making such an objection.  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 vary the Council's decision to refuse access to the records.  I find that, under section 42(m)(i), the FOI Act does not apply to the record and therefore no right of access exists.   

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