Whether the Council was justified in refusing, under sections 35(1), 37(1) and 42(m) of the Act, the name(s) of the person(s) who made a complaint to the Council regarding the disposal of waste material

15 February 2022

Background

On 23 April 2021, the applicant had a visit from the Council’s Environmental Enforcement Officer on foot of a complaint received by the Council about the disposal of waste material at a construction site where the applicant was working. On 26 April 2021, the Council received a request from the applicant for the name of the person who made the complaint and any relevant information that was forwarded to the Council relating to the matter.

On 20 May 2021, 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 2 June 2021, following which the Council varied its decision and released one record, namely a print-out of an entry on the Environment Section’s electronic system which indicated that a complaint of illegal dumping was made anonymously, through the Environmental Protection Agency (the EPA). On 14 September 2021, the applicant sought a review by this Office of the Council’s decision, wherein he said he wanted to know who had made the complaint about him.

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 in this matter. I have also had regard to the contents of the submissions from both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of the review, the Council explained that when a person contacts the EPA National Environmental Complaints Line (NECL), they are advised at initial stages of complaint to contact their local authority. However, their complaint is still logged on this national system and a ticket generated. An e-mail and a pdf ticket are then forwarded to the relevant local authority via agreed an e-mail address. It said that in this case, while the agent working the EPA complaint system marked the complaint as anonymous, the complainant(s) subsequently contacted to the Council seeking progress update on the complaint. As such, the Council does, indeed, hold a record that contains the identity of the complainant(s).

Accordingly, 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 the complaint to the Council in connection alleged illegal dumping.

Preliminary Matter

Before I address the substantive issues arising in this case, I would like to note that 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 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 complainant(s). Having regard to the particular circumstances arising, it seems to me that section 42(m) is most relevant to the question of whether the Council was justified in refusing access to the information sought.

Section 42(m)

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 –

i. 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, or

ii. any other source of such information provided in confidence 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 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

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 concerning alleged illegal dumping 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 that 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.

I note from the record released to the applicant that the EPA recorded the complaint as having been made confidentially. In its submission to this Office, the Council said its Enforcement Officer was of the view that by its very nature, the information was given was given in confidence. It argued that if the complainant(s) identity was revealed, it would have a detrimental effect on other people giving information to the Council 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 said the information contained in the Officer’s report, relates to a confidential source reporting disposal of waste to the Council which resulted in an investigation under the Waste Management Act, 1996 (as amended). I am satisfied that the third requirement is met in this case.

Conclusion

In conclusion, therefore, 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, 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 relating to alleged unauthorised waste disposal.

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