Whether the Council was justified in refusing access to the identity of the person(s) who had made written representations to the Council alleging there was unauthorised development on the applicant-™s property

18 November 2022

Background

On 30 May 2022, the applicant submitted a request to the Council, through her solicitors, for details of who had made written representations suggesting that there was unauthorised development on her property, and for a copy of the written representation. All references to communications with the applicant throughout this decision refer to communications with the applicant or her solicitors as appropriate.

On 27 June 2022, the Council refused the request under sections 35(1), 37(1), and 42(m) of the FOI Act. The applicant sought a review of that decision on 26 July 2022, following which the Council affirmed its decision. On 28 September 2022, the applicant sought a review by this Office of the Council-™s decision to refuse to provide details of who made the representation.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out the 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 in this 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 in refusing access, under sections 35(1), 37(1) and 42(m) of the FOI Act, to details of who had made written representations suggesting that there was unauthorised development on the applicant-™s property

Preliminary Matters

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.

In her submissions to this Office, the applicant said that she believed the individual(s) who made the submission to the Council did so for their own personal gain and because they have a vested interest in the property/properties involved, and not to uphold planning laws. She said that she should be allowed to know the identity of the person(s) making submissions for personal gain. 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 generally 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 true public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Analysis and Findings

The Council initially relied on sections 35(1)(a) & (b), 37(1) and 42(m) of the FOI Act to refuse access to the identity of the person(s) who had made written representations to the Council alleging there was unauthorised development on the applicant-™s property. Having regard to the particular circumstances arising, it seems to me that section 42(m)(i) is most relevant to the question of whether the Council was justified in refusing access to the information sought.

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. The section is not subject to a public interest test. In other words, 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 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

As the information sought is the identity of the person(s) who alleged that there was unauthorised development on the applicant-™s property, it is clear that the release of that information would reveal the identity of the person(s) who made the submission to the Council and that the first condition is therefore met.

Second Requirement

The second requirement for section 42(m) to apply is that the provider of information must have provided information in confidence. It is arguable that if people providing information to the Council in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information.

The Council in its submissions to this Office stated that it considers that, by its nature, the information provided was given in confidence. The Council said it relies on members of the public providing information in relation to planning enforcement complaints, which supports the Council in the enforcement of its statutory functions in this area.

It said that the particular complaint was submitted by email, together with an attached Complaint of Unauthorised Development Form used by the Council, which contains a statement that the Council will endeavour to maintain as confidential the identity of the complainant.

The Council further stated that it is accepted practice that the flow of information is provided by members of the public on the understanding and expectation of confidentiality and accepted in good faith by the Council, with the aim of carrying out its required functions relating to the enforcement or administration of the law. It said that disclosure of the identity of a complainant would lead to having a detrimental effect on future information flow from the public at large and would be contrary to preserving public confidence in the Council-™s ability to protect personal or sensitive information.

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 in its submissions said that, as a planning authority, it has a responsibility in relation to dealing with unauthorised development under the Planning & Development Act, 2000, as amended. Having regard to the nature of the information provided, I am satisfied that the third requirement is met in this case.

Conclusion

Having found that each of the three requirements are met, I find that the Council was justified in refusing access to the records sought under section 42(m)(i) of the FOI Act. Having found section 42(m)(i) 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, under section 42(m) of the Act, the applicant-™s request for the identity of the person(s) who had made written representations suggesting there was unauthorised development on her 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