Whether the Council was justified in its decision to redact certain information from records concerning a complaint made against the applicants concerning alleged dog fouling under section 42(m)(i) of the FOI Act

21/11/2018

Background

On 15 June 2018, the applicants sought all records of complaints made to the Council against them concerning alleged dog fouling. On 11 July 2018, the Council part granted the request.  It released four records, with the redaction of information from each of the records under section 42(m)(i) of the FOI Act on the ground that the release of the redacted information would reveal the identity of the person who made the complaint.  On 17 July 2018, the applicants sought an internal review of that decision, following which the Council affirmed its decision to redact certain information under section 42(m)(i).  The applicant sought a review by this Office of that decision on 15 August 2018.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting the review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter. I have also had regard to the contents of the records at issue.  In referring to the records, I have adopted the numbering system used by the Council in the schedule of records it prepared when processing the request.

Scope of Review

This review is concerned solely with whether the Council was justified in redacting certain information from four records concerning a complaint made against the applicants in relation to alleged dog fouling under section 42(m)(i).

Preliminary Matter

Under section 25(3) the Commissioner is required to take all reasonable precautions in the performance of his functions to prevent the disclosure of exempt information. As a consequence, the descriptions I can give of the Council's arguments for redacting certain information and of my findings in relation to those arguments are necessarily limited in this case.

Analysis and Findings

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.  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 provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.

The information redacted from the two records broadly falls within two categories, namely information relating to the complainant and information relating to the Council and its processing of the complaint. I will consider the applicability of section 42(m)(i) to each category of information separately.

Information relating to the complainant

I am satisfied that the disclosure of the information relating to the complainant could reasonably be expected to reveal, or lead to the revelation of, the identity of the complainant and that the first requirement is met. That information includes all of the redactions in records 2 to 4 and the first two redactions contained in the column titled -�Summary-� in record 1.

The second requirement is that the information must have been provided in confidence. In its submission to this Office, the Council stated that it accepts information relating to dog fouling on the basis that it is provided in confidence. The Council noted that where dog fouling complaints are made through its online portal a disclaimer is provided which states -�Although it-�s not compulsory we would appreciate if you could provide your name, contact number or email address. This will be used to contact you should we need additional information, location details or to update you on the issue.  These contact details will not be shared publically and only used for this purpose.-� 

While the complaint in this case was made by telephone, I accept that complainants would have a general expectation that their identities be treated as confidential, regardless of how the complaint was made. 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. I accept that without an assurance or understanding that information being provided is provided in confidence, such persons may be reluctant to provide this type of information in the future.

In a telephone conversation with Ms Swanwick of this Office, the applicant argued, in essence, that the complaint was made with ill intent and that such complaints should not be treated as having been made in confidence. This Office accepts that bodies such as the Council act upon every report such as the type at issue in this case in good faith. Indeed, when one considers the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken, the difficulty for the Council in handling such reports in any other manner becomes apparent. 

I accept that the disclosure of the identity of complainants, even where there is a possibility that the complaint was maliciously motivated, could prejudice the flow of information from the public and that the Council relies upon such information to carry out its functions. In the present case I give significant weight to safeguarding the inherent importance in protecting the free flow of information to the Council and I accept its position that the information was given in confidence in this case. Accordingly, I accept that the second requirement has been met.

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 dog control and fouling under the Control of Dogs Act 1986/1992 and the Litter Pollution Act 1997.  Accordingly, I accept that the information provided relates to the enforcement or administration of the law and that the third requirement has been met.

Having found that each of the three requirements are met, I find that section 42(m)(i) of the FOI Act applies to the information relating to the complainant as described above and that the Council was justified in redacting that information from the records at issue.

Other redacted information

The remaining information redacted from record 1 comprises either the name of the staff member who logged the complaint or identifiers used by the Council in recording the complaint. While I have carefully considered the Council's arguments for redacting the information, I do not accept that the release of the information could reasonably be expected to reveal, or lead to the revelation of, the identity of the complainant. Accordingly, I find that the first requirement is not met in respect of the remaining information in record 1. As such, I find that the Council was not justified in refusing to release this information under section 42(m)(i).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council in this case. I direct the release of all information in record 1 apart from the first two redactions contained in the column titled -�Summary-�.  I find that the Council was justified in refusing access to the remaining information.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator