Whether the Council was justified in its decision to refuse the applicant’s request for details of how a matter regarding an unauthorised development at his premises came to its attention under section 42(m)(i) of the Act

17 October 2019

Background

On 10 May 2019, the applicant sought details of how a matter regarding an unauthorised development at his premises came to the Council’s attention. On 11 June 2019, the Council refused his request relying on sections 35(1)(a), 37 and 42(m)(i) of the FOI Act. The applicant sought an internal review of that decision on 24 June 2019 following which the Council affirmed the original decision. The applicant sought a review by this Office of the Council’s decision on 18 July 2019.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the relevant record. I have decided to conclude this review by way of a formal binding decision.

Scope of the Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s request for details of how a matter regarding an unauthorised development at his premises came to its attention.

Analysis and Findings

While I am required, under section 25(3) of the Act, to take all reasonable precautions to prevent the disclosure of exempt information during the course of a review, I believe that it is appropriate for me to clarify that the information at issue in this case comprises the identity of the source of information that was provided to the Council regarding alleged unauthorised development.

While the Council has relied on sections 35(1)(a), 37 and 42(m)(i) to refuse the request, I am of the view that section 42(m)(i) is the most relevant. Accordingly, I will consider this exemption 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 regard to the nature of the information sought, I am satisfied it is clear that its disclosure would reveal 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 information was provided in confidence, the information being  details of the identity of the provider. 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 record containing the information at issue in this case indicates that the person(s) who provided the information wished for their identity to remain confidential. In its submission to this Office, the Council stated that the successful implementation of the planning legislation was reliant on the guarantee that confidentiality is respected. Essentially, the Council said it should support and, if necessary, protect any member of the public willing to assist in this area.

 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 on 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.

 Having regard to the contents of the record and to the Council’s submission, I am satisfied that the information at issue was provided in confidence in this case

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law. The information provided in this case was in relation to a complaint of alleged unauthorised development. 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 Act 2000 (as amended) and the Planning and Development Regulations 2001 to 2018. I am satisfied that the third requirement is met in this case.

Finding

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 sought. 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 the applicant’s request for details of how a matter regarding an unauthorised development at his premises came to its attention under section 42(m)(i) of the 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.

 

 

 

Senior Investigator

Stephen Rafferty