Whether the Council was justified in redacting certain information from a complaint form concerning alleged unauthorised development at the applicant’s property and in refusing access to associated maps and photographs under sections 35(1)(a) and/or 42(m) of the FOI Act

29 June 2020

Background

In a request dated 18 June 2019, the applicant sought access to a copy of the complaint form submitted to the Council’s Planning Department regarding an alleged unauthorised development at his property. In a decision dated 12 July 2019, the Council decided to grant partial access to the record, with the redaction of certain information under sections 35(1)(a) and 42(m) of the Act.

On 8 August 2019, the applicant sought an internal review of that decision. He argued that the redacted information should be released to him and that the scope of his request included any maps and photograph which must be attached to any complaint of an alleged unauthorised development. He also asked a number of questions concerning the complaint.

On 25 September 2019, Council affirmed its original decision to redact certain information from the complaint form. It also refused access to related maps and photographs under sections 35(1)(a) and 42(m). On 24 March 2020, the applicant sought a review by this Office of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. 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. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

While the Council argued in its internal review decision that the applicant’s request for maps and photographs submitted with the complaint form was essentially a request for new records that were not captured by the original request, it included them in its consideration of the request and refused access to those records. As such, I am prepared to accept that the original request did, indeed, cover records that would have been submitted with the complaint form.

I do not accept, however, that the request covered the supplementary questions raised by the applicant in his request for internal review and I do not intend to consider the Council’s response to those questions in this decision

Accordingly, this review is concerned solely with whether the Council was justified in redacting certain information from the complaint form concerning alleged unauthorised development at the applicant’s property and in refusing access to associated maps and photographs under sections 35(1)(a) and/or 42(m) of the FOI Act.

Analysis and Findings

While the Council has relied on sections 35(1)(a) and 42(m)(i) to refuse access to the information and records at issue, 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

I should say at the outset that 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. As such, the extent to which I can give reasons for my findings in this case is somewhat limited.

I can say, however, that having regard to the nature of the information redacted from the complaint form and content of the maps and photograph, I am satisfied that their disclosure could reasonably be expected to reveal or lead to the revelation of the person(s) who provided that information.

In relation to the photograph, I note that the applicant submitted his concerns that the photograph was taken from inside his property by an illegal trespasser. He submitted that this is a matter for An Garda Síochana. It is open to the applicant to refer a matter to An Garda Síochana if he considers that a trespass has taken place. Regardless, this does not change my finding that the release of the photograph could reasonably be expected to reveal or lead to the revelation of the person(s) who provided 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 is information relating to the identity of the complainant(s). 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 Complaint Form containing the information at issue sets out a requirement that photograph and maps be included in the complaint. It also indicates the Council will treat the information as confidential subject to the provisions of the Freedom of Information Act. 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 records 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 2020. 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 information sought. In light of this finding, it is not necessary for me to consider whether section 35 of the Act also 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 withhold certain information relating to a complaint of alleged unauthorised development at the applicant’s property 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