18 June 2018

Whether the Council was justified in its decision to refuse access to certain information concerning alleged unauthorised development at the applicant's property

Background

On 7 February 2018, the applicant sought copies of all records submitted to the Council concerning alleged unauthorised development at his property. On 7 March 2018, the Council decided to part-grant the request, refusing access to two records, and redacting certain information from a number of other records, under sections 35(1)(a), 37 and 42(m)(i) of the FOI Act. The applicant sought an internal review of that decision on 20 March 2018, following which the Council affirmed its original decision. On 26 April 2018, the applicant, through his solicitors, sought a review by this Office of the Council's decision.

In carrying out my review, I have had regard to the correspondence between the Council and the applicant as set out above and to the communications between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the records provided by the Council to this Office for the purpose of the review. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records it prepared when processing the applicant's request.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to records 1 and 2 and to redact certain information from records 3, 4, 7, 8, 15 -20, 24, 25, 27, and 28 relating to alleged unauthorised development at the applicant's property.

Analysis and Findings

The Council refused access to two letters it received from the complainant(s). It also reacted certain information from a number of other records held on the planning enforcement file. The vast majority of the information at issue in this case was withheld by the Council on the ground that its release would disclose the identity of the person(s) who made the complaint of alleged unauthorised development. A small amount of additional information was also withheld on the ground that it contains personal information relating to parties other than the applicant or the complainant(s). For convenience, I will consider the Council's refusal of this additional third party information in the first instance.

Other third party information
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. I am satisfied that the following information redacted from records 8, 15 and 16 is personal information relating to third parties and that section 37(1) applies:

Record 8: Name of Developer
Record 15: Redaction from body of letter
Record 16: Redaction from body of letter

There are some circumstances, provided for at section 37(2), in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Furthermore, section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

As no evidence has been presented to this Office to suggest that the release of the record at issue would be to the benefit of the third party concerned, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.
The FOI Act recognises a public interest in the promotion of openness and accountability in how public bodies perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "the right to privacy").

While I accept that there is a public interest in the applicant accessing information relating to a complaint made about his property, the release of the information in records 8, 15 and 16 would involve the disclosure of personal information relating to third parties. Therefore, the question I must consider is whether the public interest in support of release of the information outweighs, on balance, the public interest in protecting the privacy rights of that third party. In light of the fact that the release of the information would not, to any real extent, further enhance the transparency and accountability of the Council, I am satisfied that it does not. I find, therefore, that section 37(5)(a) does not apply to the redactions at issue.

Information relating to the complainant(s)
The Council relied on sections 35(1)(a), 37(1), and 42(m)(i) of the FOI Act to refuse access to information relating to the complainant(s). As section 42 serves to restrict the applicability of the 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 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 information must have been provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First Requirement
Having examined the relevant records, I am satisfied that the disclosure of records 1 and 2 and of the remaining information redacted from the other records at issue could reasonably be expected to lead to the revelation of the identity of the person(s) who provided the information to the Council. I find, therefore, that the first requirement is met in respect of the information withheld.

Second Requirement
The second requirement is that the provider of information must have provided that information 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. It is also arguable that the circumstances surrounding the receipt of complaints regarding breaches of planning law requires an understanding that the identities of complainants will not be disclosed. The records in this case contain a clear statement that the complainant(s) provided the information in confidence.

In my view, it is not generally appropriate that the details of a complaint of alleged unauthorised development would be treated as confidential or that persons making such complaints could reasonably expect that the nature of the complaint would be treated as confidential. Indeed, if a planning authority wished to follow up such a complaint, I fail to see how it could do so fairly without informing the person(s) against whom the allegations were made of the nature of the alleged unauthorised development. However, I fully accept that complainants would have a general expectation that their identities be treated as confidential. The withholding of the complainant's identity should not hamper the planning authority's ability to investigate the complaint made.
I note in this case that the Council issued a warning letter which described the nature of the alleged unauthorised development being investigated. In light of my finding that the disclosure of the withheld information could reasonably be expected to lead to the revelation of the identity of the person(s) who provided information to the Council, I accept that the information at issue was given in confidence.

Third Requirement
The third requirement is that the information provided 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 breach of planning law under the Planning and Development Acts 2000-2017 and the Planning and Development Regulations 2001 to 2018. 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 access to the information contained in the records at issue relating to the complainant(s). In light of this finding, it is not necessary for me to consider whether sections 35 or 37 of the Act apply in respect of that information.

In conclusion, therefore, I find that the Council was justified in its decision to refuse access to records 1 and 2 and to redact certain information from records 3, 4, 7, 8, 15 -20, 24, 25, 27, and 28 relating to alleged unauthorised development at the applicant's property sections 37(1) and 42(m)(i) of the FOI Act.

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 in this case.

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