Whether the Council was justified in its decision to refuse the applicant’s request for the name of the person who reported her for allegedly burning rubbish at her property under section 42(m)(i) of the FOI Act

13 September 2019

Background

On 15 February 2019 the Council received a request from the applicant for the name of the person who reported her for allegedly burning rubbish at her property. 

On 14 March 2019 the Council refused the request on the ground that the information was given in confidence and on the understanding it would be treated as confidential. On 28 March 2019 the applicant sought an internal review of that decision. The Council issued its internal review decision on 1 May 2019 in which it affirmed its original decision under section 42(m)(i) of the FOI Act. On 1 June 2019, the applicant sought a review by this Office of the Council’s decision.

I have decided to bring this review to a close by way of a formal binding decision. In conducting my 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.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant’s request for the name of the person who reported her for allegedly burning rubbish at her property under section 42(m)(i) of the FOI Act.

Analysis and Findings

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(s) 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

Given the nature of the request, it is clear that the disclosure of the information sought would reveal the identity of the person(s) who provided the relevant information to the Council. 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.

In its submission to this Office, the Council stated that all complaints made to its Environment Section are treated in the strictest confidence as per Section Policy. Although I am of the view that the content of a complaint cannot reasonably be expected to be treated in confidence and withheld, 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 local authority's ability to investigate the complaint made.

I note in this case that the Council informed the applicant that a complaint had been made about her property and described the nature of the alleged breach of waste management and pollution laws being investigated. However, it did not provide the applicant 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. I find that the second requirement is met.

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law. The Council stated that it is charged with the enforcement of legislation relating to waste management and pollution, including the Waste Management Acts and the Air Pollution Act 1987. Given the nature of the complaint made, 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) of the FOI Act applies and that the Council was justified in refusing access to the name(s) of the person(s) who reported the applicant to the Council.

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 the record sought by the applicant relating to alleged burning of rubbish at her 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