Whether the Council was justified in refusing access to photographs of the applicant’s property held in a specified unauthorised development file on the ground that the Act does not apply to the records sought, pursuant to section 42(m)(i)

5 December 2019

Background

On 28 March 2019, the applicant sought access to any photographs or recordings that may include her property and estate included in a specified unauthorised development file. On 10 April 2019, the Council refused the request under sections 35(1)(a) and 42(m)(i) of the FOI Act. The applicant sought an internal review of that decision on 2 May 2019 following which the Council affirmed the original decision. The applicant sought a review by this Office of the Council’s decision on 19 August 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 records. I have decided to conclude this review by way of a formal binding decision.

Scope of the Review

During the course of this review, the Council released copies of two photographs to the applicant as it was satisfied that their disclosure would not lead to the revelation of the identity of the person who submitted a complaint to it. It continued to withhold a number of records comprising copies of photographs submitted with two letters of complaint. This review is concerned solely with whether the Council was justified in refusing access to those records.

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 of most relevance. 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 regard to the contents of the records sought, I am satisfied that their disclosure could reasonably be expected to 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. 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 the successful enforcement of the planning 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 also noted that the complainant(s) specifically requested confidentiality when making their complaint(s) to the Council.

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 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 planning legislation. However, I fully accept that complainants would have a general expectation that their identities be treated as confidential.

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

I note the applicant’s claim that she is aware of the identity of the person(s) who provided the information at issue. However, this does not alter the fact that the complainant(s) specifically requested confidentiality when making their complaint(s) to the Council.

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 unauthorised development. The Council is charged with the enforcement of the Planning and Development Act. 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 records sought. In light of this finding, it is not necessary for me to consider whether section 35 of the Act applies to any of the records at issue.

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 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