Whether the Council was justified in refusing access to information which would reveal the name of the person who made a complaint regarding the applicant under sections 35(1) and 42(m) of the FOI Act

19 October 2023

Background

On 6 June 2023, the applicant sought access to records containing details of a complaint made relating to her, as well as any other records held by the Council regarding her. On 4 July 2023, the Council issued its original decision wherein it part-granted her request. It released one record relating to the complaint in part (record 1) under section 35 of the FOI Act. It released additional records relating to the applicant in full. On 15 July 2023, the applicant requested an internal review of the Council-�s decision to refuse access to record 1 in part. On 26 July 2023, the Council affirmed its original decision. It indicated that it also considered section 42(m) of the FOI Act to apply to the record in question. On 15 August 2023, the applicant applied to this Office for a review of the Council-�s decision, wherein she argued that she was entitled to know who had made the complaint in question. She also contended the information provided to the Council was false and that the complaint had been made maliciously.

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 applicant-�s comments in her application for review and to the submissions made by the Council in support of its decision. I have also had regard to the contents of the record concerned. 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 to the information withheld from release on the basis of sections 35(1) and 42(m) of the FOI Act.

Preliminary Matters                                                                        

In her submissions to this Office, the applicant stated that she believed the record concerned should be released to her because she believed that she had a right to know the identity of the person(s) who made a complaint about her. Section 13(4) of the FOI 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 FOI Act requires a consideration of the public interest. This does not arise in this case.

Analysis and Findings

The Council relied on sections 35(1)(a) and 42(m)(i) in refusing access to the record concerned in part. Section 42 restricts the applicability of the FOI Act in certain circumstances. Accordingly, I consider it appropriate to consider the applicability of section 42(m) first.  

Section 42(m)(i)

Section 42(m)(i) provides that the FOI 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). The section is not subject to a public interest test. In other words, if the section apples, then that is the end of the matter and no right of access exists as the FOI Act does not apply to such records.

Essentially, section 42(m)(i) 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. This Office takes the view that it is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the law.

For section 42(m)(i) to apply, three 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

The information withheld from release in this case comprises the name and/or address of the person(s) who complained to the Council about the applicant. Having regard to the nature of the information withheld, I am satisfied that the first condition has been met in this case.

Second requirement

The second requirement for section 42(m) to apply is that the information must have provided in confidence. In its submissions to this Office, the Council referred to its complaints webpage and its privacy statement, which it said applied to all complaints its receives. It stated that waste enforcement complaints, such as the one concerned in this case, are generally submitted in confidence. The Council stated that the complaint in question was submitted by to a local Councillor, who entered it onto the Membersnet system. The Council stated that the Membersnet System enables Councillors to directly submit requests and complaints on behalf of their constituents and/or at their own behest. It said that the Councillor concerned requested that the complaint be investigated -�sensitively-�. Essentially, the Council-�s stated that while this comment by itself did not necessarily indicate that the supplier of the information wished to remain anonymous, taken together with the confidential nature in which it handles complaints generally, it was satisfied that the information had been provided in confidence.

On the matter of the applicant-�s argument that the complaint was false, without foundation and made maliciously, this Office accepts that bodies such as the Council act upon every report such as the type at issue in good faith and that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, or where it was subsequently found to be without foundation, could reasonably be expected to prejudice the flow of information, which bodies such as the Council rely upon to carry out their functions. 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 relates to the enforcement or administration of the law. The Council stated that the Waste Management Act 1996 (WM Act) and its amendments confers enforcement powers on local authorities to enable them to tackle illegal waste activity. It stated that section 59 of the WM Act specifically states that each local authority is responsible for the supervision and enforcement of the relevant provisions of the WM Act in relation to the holding, recovery, and disposal of waste within its functional area. The Council said that in exercising this power it pursued a specific enforcement measure under the Segregation, Storage, Presentation of Household and Commercial Waste Bye Laws (2018). Essentially, its position is that complaints regarding waste matters such as the type concerned in this case relate to its enforcement of the WM Act. In the circumstances, I am satisfied that the third requirement is met in this case.

Having found that each of the requirements for section 42(m)(i) are met, I find that the Council was justified in refusing access to the information sought under that section. As I have found section 42(m)(i) to apply, I do not need to consider the Council-�s reliance on section 35(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-�s decision to refuse to release details of the individual who made a complaint about the applicant under section 42(m)(i) of the FOI Act.

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.
 

Sandra Murdiff
Investigator