Whether the Council was justified in its decision to refuse access to certain records relating to alleged unauthorised development at the property of the applicants

29/03/2019

Background

On 24 April 2018 the applicants sought access to "a full photocopy of text and photographs of a representation made" to the Council alleging certain unauthorised development at their property. On 17 May 2018 the Council refused the request under sections 35(1)(a), 37 and 42(m)(i) of the FOI Act. The applicants sought an internal review of that decision on 2 June 2018. In its internal review decision of 2 June 2018, the Council provided details of the nature of the complaint made concerning the alleged unauthorised development but it continued to rely on sections 35(1)(a), 37, and 42(m)(i) of the Act to refuse access to the records at issue.

On 13 December 2018, this Office received an application for review of the Council-™s decision by the applicants. In carrying out my review, I have had regard to the correspondence between the Council and the applicants as set out above and to the communications between this Office and both the applicants and the Council on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to the records sought by the applicants relating to alleged unauthorised development at their property.

Analysis and Findings

As I have outlined above, the Council relied on sections 35(1)(a), 37, and 42(m) of the FOI Act to refuse the request. As section 42 serves to restrict the applicability of the FOI 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 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 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 their disclosure could reasonably be expected to lead to the revelation of the identity of the person(s) who provided that information. I find, therefore, that the first requirement is met.

Second Requirement

The second requirement is that the provider of the information must have provided it 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. The records in this case contain a clear statement that the complainant(s) provided the information in confidence. 

In its submission to this Office, the Council stated that the reform of the Enforcement Section of the Planning and Development Act 2000 made it more responsive to the concerns and complaints of the public and involves them to a greater extent in enforcement. It argued that it should therefore support and, if necessary, protect its sources and any members of the public willing to assist in this area. 

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 and provided details of the allegations made in its internal review decision. However, it did not provide the applicants with any information or records that would disclose the identity of the complainant(s). In the circumstances of this case, I am satisfied that such identifying information was provided in confidence. As I have already found that the release of the records at issue could reasonably be expected to lead to the revelation of the identity of the person(s) who provided the information, I am satisfied that the second requirement is met in respect of the records at issue.

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 records at issue. In light of this finding, it is not necessary for me to consider whether sections 35 or 37 of the Act apply.

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 to refuse access to certain records sought by the applicants relating to alleged unauthorised development at their property 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