Whether the Council was justified in refusing access to certain records relating to a complaint about the applicant’s property

11 December 2019

Background

The applicant in this case has been represented by her solicitors from the outset. Accordingly, all references to correspondence with the applicant should be taken to include correspondence with her solicitors acting on her behalf. On 6 June 2019, the applicant sought a copy of the entire file held by the Council’s Environmental Section in relation to the applicant’s property arising from a complaint made.

On 5 July 2019, the Council part-granted the request, relying on sections 35(1)(a) and 42(m)(i) of the FOI Act to redact or withhold certain records. The applicant sought an internal review of the decision to redact and withhold records 3, 7 and 10 on 16 July 2019, following which the Council affirmed the original decision. The applicant sought a review by this Office of the Council’s decision on 3 September 2019.

During the course of the review, the Council identified and released one further relevant record with certain redactions.

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 records. I have decided to conclude this review by way of a formal binding decision. 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 request.

Scope of the Review

It appears that there may be some uncertainty as to the precise documents to which the applicant continues to require access. For the avoidance of doubt, I have included all of the records identified by the Council. Accordingly, this review is concerned with whether the Council was justified in refusing access to records 4, 7 and 10 and in redacting certain information from record 3 and from the additional record that was released in the course of the review.

Analysis and Findings

While the Council has relied on sections 35(1)(a) 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 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.

First Requirement

Having examined the information withheld, I am satisfied its disclosure would reveal the identity of the supplier(s) of the 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 at issue in this case being details of the identity of the supplier(s). It is arguable that if people providing information to the Council in cases such as this were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information.

In her application for review to this Office, the applicant contended that she was entitled to know who had made the complaint, and that there was no evidence that the complainant(s) had requested such confidentiality from the Council. She also argued that the complaint was false and without foundation.

In its submission to this Office, the Council stated that the successful enforcement of the environmental legislation was reliant on the guarantee that members of the public would not have their identity revealed to the person or persons subject of the complaint.  

It is not generally appropriate that the details of a complaint of alleged water pollution 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 local 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 breaches of environmental legislation. However, I fully accept that complainants would have a general expectation that their identities be treated as confidential.

On the matter of the applicant’s argument that the complaint was false and without foundation, this Office accepts that bodies such as the Council act upon every report such as the type at issue in good faith and that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, or where it was subsequently found to be without foundation, could reasonably be expected to prejudice the flow of information, which bodies such as the Council rely upon to carry out their functions. Having regard to the nature of the information at issue and to the Council's position on the matter, I accept that the information was given in confidence in this case and I find that the second requirement has been met. 

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 water pollution. The Council is charged with the enforcement of the Local Government (Water Pollution) Acts. 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 section 35 of the Act applies.

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 withheld records, in whole or in part, 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.

 

 

Stephen Rafferty

Senior Investigator