Decision
Ms X and Donegal County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-151355-Z3J6B6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151355-Z3J6B6
Published on
Whether the Council was justified in refusing access, under section 42(m) of the FOI Act, to the identity of the person(s) who made a complaint about the applicant
11 November 2024
On 14 May 2024, the applicant made a request to know who reported her for having a mobile home in her garden. On 29 May 2024, the Council refused the applicant’s request under section 42(m) of the FOI Act on the ground that release of the information would reveal the identity of a person who provided information in confidence in relation to the enforcement or administration of the law to the Council. The applicant sought an internal review of the Council’s decision, following which the Council affirmed its original decision. On 16 August 2024, the applicant applied to this Office for a review 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 the correspondence between the Council and the applicant as outlined above and to the submissions of the Council on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in refusing the applicant’s request, under section 42(m) of the FOI Act, to know who reported her for having a mobile home in her garden.
I note that, in her correspondence with both the Council and this Office, the applicant states that she is seeking the identity of the reporter(s) for her peace of mind and for future plans/planning. 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 genuine public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest (not relevant in this case for the reason outlined below).
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, 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 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 under the FOI Act to the information sought.
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 person(s) who reported the applicant, I am satisfied that the release of that information would reveal the identity of the person(s) who made the report to the Council.
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 that the approach consistently applied by the Planning Authority of the Council is to treat complaints such as the one at issue in this case as being made in confidence in line with government guidelines on planning enforcement. The Council said the approach consistently applied by it is to protect the identity of applicants and ensure confidence in the planning process. It said that it is established practice not to disclose records that could reasonably be expected to impair the prevention, detection or investigation of offences, reveal the identity of complainants/third parties in such matters and impact on the effectiveness of procedures employed. The Council also referred to publications by the Office of the Planning Regulator, which state that as much of the enforcement file should be made available as possible, in the interest of transparency, except where this could jeopardise court action or reveal the identity of complainants (emphasis added by the Council).
This Office takes the view 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 and that the disclosure of the identities of complainants could reasonably be expected to have a detrimental effect on other people giving such information to those bodies in the future. Having reviewed the record(s) and the Council’s submissions in the matter, I am satisfied that the information was provided in confidence in this case. Accordingly, I am satisfied that the second condition is met in this case.
Third requirement
The third requirement is that the information provided relates to the enforcement or administration of the law. The Council said that the record(s) containing the information sought by the applicant relate specifically to a planning enforcement case under the Planning and Development Act 2000 (as amended), specifically Part VIII of that Act. In light of this, I am satisfied that the third requirement is met in this case.
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)(i) of the FOI Act.
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 identity of the person(s) who reported the applicant for having a mobile home in her garden.
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.
Richard Crowley
Investigator