Whether the Council was justified in refusing, under section 42(m) of the Act, the applicant’s request for the name(s) of the person(s) who made a complaint to the Council in connection with his property and the details of the complaint made

21 June 2021

Background

On 19 February 2020, a Council official visited the applicant’s property on foot of a complaint the Council had received about alleged unauthorised development at the property. The applicant wrote to the Council on 23 February 2020 seeking the name(s) of the person(s) who had made the complaint. In its response of 6 March 2020, the Council said it does not release the details of a complainant on an enforcement file.

The applicant then contacted the Council and asked or details of the complaint made. On 11 March 2020, the Council provided the details of the complaint. It also said that a complainant’s details provided in confidence cannot be divulged, pursuant to section 42(m) of the FOI Act. Following further correspondence between the parties, including the applicant’s solicitor, the Council informed the applicant that it was satisfied there was no basis for the complaint and that its enforcement file was closed.

On 16 September 2020, the applicant submitted an FOI request to the Council for the name(s) of the person(s) who made the complaint and the details of the complaint made, both written and verbal. On 13 October 2020, the Council refused the request under section 35(1) of the FOI Act. The applicant sought a review of that decision on 30 October 2020, following which the Council affirmed its decision to refuse the request. On 6 April 2021, the applicant sought a review by this Office of the Council’s decision.

During the course of the review, the Council indicated that it also wished to rely on section 42(m) of the Act in support of its refusal of the request. This Office’s investigating officer informed the applicant of the Council’s reliance on that provision and of her view that the Council was justified in relying on that provision to refuse access to the details of the complainant(s). She invited the applicant to make a submission on the matter and he did so.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out this review, I have had regard to the correspondence between the Council and the applicant as outlined above and to the 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 held by the Council that contain the information sought. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant’s request for the name(s) of the person(s) who made a complaint to the Council in connection with his property and the details of the complaint made, both written and verbal, under various provisions of the FOI Act 2014.

Preliminary Matters

Before I address the substantive issues arising in this case, I would like to make a number of relevant preliminary comments. First, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. This means that in this case, I must consider whether the Council was justified in refusing access to the records containing the information sought by the applicant.

Second, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, 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 I 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. For the reason I will explain below, a consideration of the where the balance of the public interest lies does not arise in this case.

Analysis and Findings

The records at issue comprise a completed Planning Enforcement Complaint Form and an exchange of emails with the complainant(s). While the Council refused the applicant’s request for details of the complaint made under section 35(1), I note that it has previously provided that information in its earlier correspondence with the applicant. In its letter of 11 March 2021, it informed the applicant that the details of the complaint made were as follows:

“The owner of the property had allegedly subdivided an existing hayshed into separate units for livestock. The complainant was concerned that the owner of the property intended to run a commercial enterprise from the property.”

Having examined the records at issue, I am satisfied that the information provided by the Council corresponds with the details of the complaint made as contained in the records at issue. However, I am also of the view that the release of the records, even with the redaction of the identity of the complainant(s), could reasonably be expected to lead to the identification of the complainant(s). As such, it seems to me that section 42(m) is of most relevance to the question of whether the Council was justified in refusing access to the records.

Section 42(m) 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 to FOI bodies 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. The section is not subject to a public interest test. In other words, if the section applies to the records sought, then that is the end of the matter and no right of access exists.

For section 42(m) 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 given in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First Requirement

Having examined the records at issue, I am satisfied that their release could reasonably be expected to lead to the revelation of the identity of the supplier of the information.  I find, therefore, that the first requirement is met.

Second Requirement

The second requirement for section 42(m) to apply is that the provider of information must have provided that information in confidence. In its submission to this Office, the Council explained that a complaint may be submitted to the planning authority in accordance with Section 152 of the Planning and Development Act 2000. It noted that the complainant(s) ticked the relevant part of the Planning Enforcement Complaint Form to request that their identity would not be disclosed. It argued, therefore, that there was an explicit expectation of confidentiality regarding the identity of the complainant(s) in this case.

Furthermore, the Council said it relies on members of the public providing information in relation to unauthorised developments which supports the Council in the enforcement of its statutory functions in this area. It said it is vital that members of the public are not deterred in any way from providing such information to the planning authority which might affect the continued flow of such information which it regards as invaluable in this function.  It said complaints regarding unauthorised development constitute part of the Council’s records and that it endeavours to maintain as confidential any complaints made to it in confidence and in good faith.

The applicant argued that the complaint made was false and misleading and that this was recognised by the planning enforcement officer who inspected his property. He alleged that the enforcement officer agreed that the complaint was vexatious. He noted that the explanatory memorandum accompanying the complaint form states that;

“… where complaints transpire to have been made in bad faith or maliciously, then the person making such written complaints cannot expect that the record(s) of his/her complaint will be treated in confidence.”

The applicant provided further information in support of his contention that the complaint was vexatious. This Office takes the view that the purpose of section 42(m)(i) is to protect the flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law. Thus, section 42(m)(i) may apply where information was given in confidence, but is subsequently found to be mistaken or unfounded.

This Office gives significant weight to safeguarding the flow of information to FOI bodies. We accept that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public. In many situations the FOI body acts on the information provided in good faith. 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 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 to the FOI body relates to the enforcement or administration of the law. The Council submitted that it is charged with the enforcement of legislation in relation to the proper planning and sustainable development of its functional area. It has specific powers of enforcement under the Planning and Development Act 2000, as amended, and also the Planning and Development Regulations 2018.  A complaint may be submitted to the planning authority in accordance with Section 152 of the Planning and Development Act 2000. Having regard to the contents of the records at issue, 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) of the FOI Act applies and that the Council was justified in refusing access to the records sought under section 42(m) of the FOI Act. Having found section 42(m) to apply, I do not need to consider the applicability of section 35 to the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse, under section 42(m) of the Act, the applicant’s request for the name(s) of the person(s) who made a complaint to the Council in connection with his property and the details of the complaint made.

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