Whether the Department was justified in refusing information relating to the identity of the person who reported the death of a calf near the applicant’s property under sections 35(1)(a) and/or 42(m)(i) of the FOI Act

18 December 2020

Background

In a request dated 16 April 2020, the applicant sought details of “the individual who reported the death of a calf on the side of the road” near his property two days prior. On 18 May 2020, the Department wrote to the applicant and identified one record, comprising a phone note, which fell within the scope of his request. The Department refused the request under section 35(1)(a) of the FOI Act, which is concerned with the protection of information given in confidence.

In a letter dated 4 June 2020, the applicant sought an internal review of that decision. He said he was advised that the calf was hit by a car and that he required the identity of the complainant in order to pursue a legal claim to recover loss. On 3 July 2020, the Department affirmed its original decision to refuse the request On 24 August 2020, the applicant sought a review of the Department’s decision.

During the course of the review, Ms Whelan of this Office informed the applicant of her view that section 42(m)(i) was the more relevant provision in this case and invited him to make a submission on the matter. In response, the applicant simply indicated that he wanted the review to proceed.

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 Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter. I have also examined the record concerned. 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 Department was justified in refusing access to the name of the individual who reported a dead calf under sections 35(1)(a) and/or 42(m)(i) of the FOI Act.

Analysis and Findings

While the Department relied on section 35(1)(a) to refuse access to the identity of the caller in this case, I am of the view that section 42(m)(i) is the more relevant provision in this case. 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

The first requirement is clearly met in this case, given that the request is for details of the individual who made the complaint to the Department.

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 Department in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information.

The Department relied on section 35(1)(a) in its original decision to refuse the information sought, stating that such information was provided in confidence. In a submission to this Office, the Department stated that welfare issues, such as that arising in this case, are always dealt with the utmost of care for all involved and this usually involves keeping the name of the caller, if given, in confidence.

The applicant argued in correspondence with the Department that the complaint was inaccurate and the animal had been hit by a car. The applicant stated that he wished to know the identity of the complainant in order to pursue a legal claim to recover loss.

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).

This Office gives significant weight to safeguarding the flow of information to FOI bodies and accepts that the disclosure of the identity of complainants could prejudice the flow of information from the public. This Office further accepts that in many situations the FOI body acts on the information provided in good faith. Indeed, the Commissioner has previously expressed the view that when the situation of the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken is considered, the difficulty for the FOI body in handling such information in any other manner becomes apparent.

Having regard to the contents of the records and to the Department’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 the unauthorised disposal of animal remains. The Department is charged with the enforcement of legislation relating to the disposal of carcasses under S.I. No. 160/2015-Disposal of Carcases (Prohibition) Regulations 2015 and S.I. No. 187 of 2014 European Union (Animal By-Products) Regulations 2014. 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 Department 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 Department to withhold information relating to the identity of the person who reported the death of a calf near 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