Whether the Council was justified in its decision to refuse access to certain records relating to the applicant’s housing file with the Council

12 July 2021

Background

On 20 May 2020, the applicant’s legal representatives submitted a request to the Council for all records relating to the applicant’s housing file, to include records relating to the allocation of a specified property, records of specified meetings and records relating to any allegations made against her and/or her family in relation to her current accommodation. All references to communications with the applicant in this decision should be taken to include communications with her legal representatives.

On 24 June 2020, the Council decided to part-grant the request. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records it provided with its decision. It granted access, in full or in part, to 98 records it identified as coming within the scope of the request, redacting information from 22 of the records under sections 35 and 37(1) of the FOI Act. It redacted information from one other record (record 89) on the ground that the redacted information did not come within the scope of the applicant’s request

On 22 July 2020, the applicant sought an internal review of the Council’s decision wherein, amongst other things, she identified certain other records that she believed to have been omitted from the records released. The Council issued its internal review decision on 7 August 2020, in which it varied its original decision. It released additional information contained in records 12 and 28, with the redaction of personal information under section 37(1). It also varied the basis on which redactions were made to records 9, 48, and 49, citing sections 30(1)(a), 30(1)(b), 35(1), and 37(1). It also provided an explanation as to why certain other records sought did not exist.

On 5 February 2021, the applicant sought a review by this Office of the Council decision to refuse access to screenshots and video referenced in records 9 and 48.

During the course of the review, this Office’s Investigator notified the applicant of his view that section 42(m)(i) of the Act was of relevance to the records at issue and he afforded the applicant an opportunity to make a submission on the applicability of that provision. The applicant made submissions in reply.

I have decided to conclude this review by way of a formal binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the Council, 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 records at issue.

Scope of the Review

I note that during the course of the review, this Office’s Investigator sought to clarify the scope of the review with the applicant. In response, the applicant indicated that she was seeking access to all of the records at issue including, but not limited to, the photographic and video attachments to records 9 and 48.

Having examined the application for review that was submitted to this Office, I note that the review sought was in respect of the decision taken by the Council to refuse access to “screenshots and video in the possession of the local authority … referred to in records 9 and 48”. It would not be appropriate for this Office to broaden the scope of the review to consider records for which a review was not sought in the first instance. As such, this review is concerned solely with whether the Council was justified in withholding access to screenshots and video referenced in records 9 and 48.

Preliminary Issues

It is important to note that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that I am constrained in this case from providing a fuller explanation for my findings than that set out below.

Furthermore, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse and FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest (not relevant in this case).

Analysis and Findings

Record 9 comprises an internal Council email dated 27 March 2020, and an external email from a third party to the Council of the same date. Attached to the latter are photographs and video footage to which the Council refused access. The photographs and video footage withheld from record 48 are the same as that withheld from record 9.

Section 42(m)(i)

As I have outlined above, during the review this Office notified the applicant of the potential relevance of section 42(m)(i) of the Act to the information at issue. It is important to note that a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Section 42 of the Act excludes certain records from the scope of the FOI Act. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of section 42(m)(i) to the information at issue, notwithstanding the fact that the provision was not relied upon by the Council as a ground for withholding the information.

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.

When seeking submissions from the Council in relation to this review, this Office raised the matter of the potential applicability of section 42(m)(i) of the Act. In response, the Council indicated that it did not consider that section 42(m)(i) was applicable in circumstances where, according to its submissions, the first two elements of section 42(m)(i) (that the disclosure of the record could reasonably be expected to reveal, or lead to the revelation, of the identity of the supplier of the information; and that the information was given in confidence) were already covered by the exemption under section 35(1) of the Act upon which it sought to rely. In relation to the final element of section 42(m)(i), that the information provided related to the enforcement or administration of the law, the Council submitted that it did not consider this to be applicable because the information at issue may not have been conclusive enough to serve as evidence of criminality, and as such the Council was not sufficiently confident of the applicability of this element of section 42(m)(i).

Notwithstanding the Council’s submission, this Office considers that section 42(m)(i) is a more appropriate provision where the objective is to protect the identity of the source of information provided in confidence. Section 35(1) is the more appropriate provision where the aim is to protect the confidentiality of the information itself.

In essence, section 42(m)(i) 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. This Office takes the view that it is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the law.

For section 42(m)(i) to apply three requirements must be met;

* disclosure of the withheld information could reasonably be expected to reveal, or lead to the revelation of, the identity of the supplier of information,

* the information supplied must have been given in confidence, and

* the information supplied must relate to the enforcement or administration of the law.

First Requirement

In relation to the first requirement of section 42(m)(i), it should be noted that I am not required to make a finding on the actual likelihood of the identification of the complainant occurring from the disclosure of the record at issue. All that section 42(m)(i) requires is that the disclosure of the information at issue could reasonably be expected reveal, or lead to the revelation of, the identity of the individual.

In cases such as this, the local authority is often best placed to make this determination, as such determination may be dependent on a knowledge of the geography of the area in which the photographs and video footage were taken. Such knowledge may support a

finding on whether the angle and location from which a photograph or video has been taken could reasonably be expected to lead to revelation of the identity of the party who captured the images and provided same to the Council. As such this Office considers that it is appropriate to have regard to the views of the Council in respect of such potential identification. In its submission to this Office, the Council contended that the disclosure of the photographs and video footage would allow for the identification of the person who provided the information. Having carefully examined the records at issue, I accept the Council’s contention.

The applicant suggested that the withheld video footage and photographs could be redacted to protect the identities of any individuals featured therein. I am satisfied that the question of redacting he records at issue to protect the identities of individuals does not arise in this case.

Second Requirement

The second requirement is that the information supplied must have been given in confidence. The text in the email that accompanies the photographs and video footage that comprise Record 9 makes it clear that the supplier of the information was at pains to ensure his/her identity was not revealed.

In its submissions to this Office regarding the applicability of section 30(1) of the Act (which is concerned with the protection of a public body’s ability to effectively carry out its functions), the Council argued that the inability to provide potential future complainants with a guarantee of confidentiality would impinge upon its ability to carry out its functions with regard to estate management. It argued, in the context of section 30(1), that the identification of the complainant would have a chilling effect on future complaints in relation to anti-social behaviour in estates managed by the Council, as the confidentiality of any such future complaints could not be guaranteed.

It is arguable that if people providing information to the Council concerning alleged anti-social behaviour were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. I accept that without an assurance or understanding that information being provided is provided in confidence, such persons may be reluctant to provide this type of information in the future.

I therefore find that the photographs and video footage were provided to the Council in confidence, in satisfaction of the second requirement of section 42(m)(i).

Third requirement

The third requirement is that the information supplied must relate to the enforcement or administration of the law, which includes both the civil law and the criminal law. In her submissions to this Office, the applicant stated that the Council, as the relevant housing authority, was charged with managing its housing stock and addressing anti-social behaviour within its housing stock. The applicant noted that at page two of the Council’s Anti-Social Behaviour Strategy, the key purpose of the strategy was to described as “…to set out measures of the prevention of anti-social behaviour in a local authority’s housing stock. The

applicant contended that, as the property in which the applicant resided was not a Council property, the powers of the Council to manage its housing stock or its enforcement remit under the Housing Act 1966-2009 were not applicable to this case, and therefore that the restriction provided for in section 42(1)(m) of the Act should not apply.

I do not accept this argument. I note, for example, that under section 14 of the Housing (Miscellaneous Provisions) Act 1997, as amended, a housing authority may refuse to make or defer the making of a letting of a dwelling to a person where it considers that the person is or has been engaged in anti-social behaviour or that a letting to that person would not be in the interest of good estate management. It is not a pre-requisite that the person must be a resident in a housing authority property. I am satisfied that the information at issue in this case relates to the enforcement or administration by the Council of its functions under the Housing Acts and that the third requirement applies.

Conclusion

In conclusion, as all three requirements for section 42(m)(i) to apply have, in my view, been met, I find that the Act does not apply to the photographs and video footage sought by the applicant. As such, I do not consider it necessary to examine the applicability of the other exemptions cited by the Council in support of its refusal to grant access to the records at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council in this case to refuse access to photographs and video footage associated with Records 9 and 48. I find that the information sought falls within the scope of section 42(m)(i) of the Act, such that the FOI Act does not apply to the information in question.

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