Whether the Council was justified in refusing, under sections 35(1), 37(1) and 42(m)(i) of the Act, the name(s) of the person(s) who made a complaint to the Council regarding the management of slurry on the applicant's property

16 May 2022

Background

In a request dated 18 October 2021, the applicant sought access, through his legal representatives, to a copy of a complaint filed with the Environmental Section of the Council regarding the management of slurry on his property. Any reference to communications with the applicant in this decision should be taken to include communications with his legal representatives.

The Council part-granted the request. It released a copy of the complaint, with the redaction of the identity of the complainant(s) under sections 35, 37 and 42(m) of the FOI Act. On 9 December 2021, the applicant sought an internal review of the Council's decision, on the ground that the complaint was unfounded and spurious. On 22 December 2021, the Council affirmed its original review decision. By letter dated 20 January 2022, the applicant applied to this Office for a review of the Council's decision to refuse access to the identity of the complainant(s).

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 the correspondence between the applicant and the Council outlined above and to communications between this Office and both parties on the matter. 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 refusing access, under sections 35(1), 37(1) and 42(m)(i) of the Act, to the name(s) of the person(s) who made a complaint to the Council regarding the management of slurry on the applicant's property.

Analysis and Findings

In my view, section 42(m)(i) is of most relevance in this case. The section 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.

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. If the section applies, then that is the end of the matter and no right of access exists.

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 information. The second is that the information supplied must have been given in confidence, while the third is that the information supplied must relate to the enforcement or administration of the law.

First Requirement

As the information sought is the identity of the complainant(s), it is clear that the release of that information would reveal the identity of the supplier(s) of the information and that the first condition is therefore met.

Second Requirement

The second requirement for section 42(m) to apply is that the information must have been provided in confidence. In its submissions to this Office, the Council said it considers that by its nature, the information was given in confidence. It said it relies on members of the public providing information in relation to environmental complaints, which supports the Council in the enforcement of its statutory functions in this area. It said that while the particular complaint was submitted by email, the Council complaints form states the following:  -�Confidentiality: You are not obliged to give us your contact details on this form, however, if we need further information on a complaint, it would be helpful to be able to contact you. Your details will remain confidential at all times.-�

The Council argued that the revelation of a complainant's identity would have a detrimental impact on the flow of information from members of the public giving information to the Council and would be contrary to preserving public confidence in the Council's ability to protect personal or sensitive information. The Council said that it endeavours to maintain as confidential any complaints made to it in good faith.

The essence of the applicant's argument is that the complaint in this case was not substantiated. He argued that the protection afforded by anonymity should not extend to false allegations.

This Office considers 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. We give 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. We take 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 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 must relate to the enforcement or administration of the law. In its submissions, the Council said that it has responsibilities under the EU (Good Agricultural Practice for the Protection of Waters) Regulations 2017 and/or the Water Pollution Acts 1977-1990 to deal with complaints of this nature. I am satisfied that the third requirement is met in this case.

Conclusion

In conclusion, having found that each of the three requirements are met, I find that the Council was justified in refusing access to the information sought under section 42(m) of the FOI Act. Having found section 42(m) to apply, it is not necessary for me to consider whether sections 35 and 37 of the Act also apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access, under section 42(m)(i) of the Act, to the name(s) of the person(s) who made a complaint to the Council regarding the management of slurry on the applicant's property.

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