Whether the Council was justified in refusing access to the identity of the individual(s) who made a complaint to the Council relating to an alleged unauthorised extension to the applicant’s licensed premises under section 42(m) of the FOI Act

17 August 2021

Background

In a request to the Council dated 15 September 2020, the applicant referred to a warning letter reference EN18/207 and he sought access to the name and address of the complainant along with their letter of complaint. He said his request was as a result of a previous vexatious observation from a party submitted under a false name and address in relation to planning reference 19/192.

On 14 October 2020, the Council issued a decision in which it granted access to what it described as a transcript of the complaint received but refused access to the complainant’s details under section 42(m)(i) of the Act.

On 12 November 2020, the applicant sought an internal review of the Council’s decision to refuse access to the name of the complainant. He said he was only interested in the most recent complaint and that it should not be confused with the previous observation. On 18 November 2020, the Council affirmed its original decision. On 18 May 2021, 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 carrying out my review, I have had regard to correspondence between the applicant and the Council as set out 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 records at issue. 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, under section 42(m) of the FOI Act, in refusing access to the identity of the individual(s) who made a complaint regarding the applicant’s licensed premises.

Analysis and Findings

During the course of the review, it became apparent that there was some confusion concerning the precise record that was sought by the applicant. The reference cited by the applicant in his request (EN18/207) related to a warning letter that the Council had issued to him subsequent to a complaint it received relating to alterations he made to his licensed premises in 2018.  Accordingly, the Council identified the relevant complaint letter from 2018 as the relevant record sought. In its decision, it issued what it described as a transcript of that 2018 letter, whilst refusing access to the complainant details. It subsequently affirmed that decision, notwithstanding the applicant’s request that the complaint he was interested in should not be confused with the previous observation.  

In his application to this Office for a review of the Council’s decision, the applicant explained that he had undertaken work on his premises in May 2020 and that he was only interested in the complaint relevant to warning letter WN/EN/20/2035. This Office provided the council with a copy of the application for review and sought a copy of the relevant record to enable the review to proceed. In response, the Council provided a copy of a letter it received in August 2018.

Following enquiries made by the Investigating Officer, the Council confirmed that it holds a more recent complaint from 2020 that relates to the warning letter EN/20/2035 and it forwarded a copy of that letter to this Office. Having examined the letter, I am satisfied that the 2020 letter is, in fact, the letter that the applicant was seeking in his FOI request. It seems the Council mistakenly assumed he was seeking access to the 2018 letter as he had specifically referred to EN18/207 in his original request. Nevertheless, I am satisfied that the applicant clearly indicated in his request for internal review and in his application to this Office that it is the more recent letter of complaint that he sought.

In the circumstances, I find that I am not in a position to review a decision taken by the Council on a record that the applicant did not request. Accordingly, it seems to me that the most appropriate course of action is to annul the decision of the Council in this case, the effect being that the Council must consider the applicant’s request afresh and make a new, first instance, decision on the 2020 letter of complaint in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council’s decision.

Finally, for the benefit of the Council, I would add that while the Council released details of the substance of the 2018 complaint to the applicant in its decision on the request, the information released was not, as it was described, a transcript of the record held. Rather, it was essentially a summary of the substance of the complaint. The release of the substance of a complaint contained in a record should not be described as a transcript of the record sought if it is not an exact transcript of the record. While there is nothing in the Act to prevent the Council from disclosing the substance of a complaint received, the Council must consider the request for access to the record as held.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse access, under section 42(m) of the FOI Act, to the identity of the individual(s) who made a complaint regarding the applicant’s licensed premises. I direct the Council to conduct a fresh decision-making process that should deal with the more recent complaint it received in 2020.

Right of Appeal

Section 24 of the FOI Act set 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