Decision
Company X and Limerick City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-151848-S7F1Q5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151848-S7F1Q5
Published on
Whether the Council was justified in refusing access, under sections 35, 37 and 42(m) of the FOI Act, to certain records relating to planning enforcement
19 June 2025
In a request dated 26 April 2024, the applicant, a private limited company, sought access to all records held by the Council pertaining to five referenced files. The files relate to planning enforcement matters concerning the applicant. In a decision dated 28 May 2024, the Council part-granted the request. It refused access to certain records, in full or in part, under sections 35 and 37 of the FOI Act. On 30 May 2024, the applicant sought an internal review of the decision in respect of 33 identified records. The Council affirmed its decision on 27 June 2024. On 6 September 2024, the applicant applied to this Office for a review of the Council’s decision.
During the course of the review, in its submissions to this Office, the Council said that section 42(m)(i) of the FOI Act further substantiated the decision to withhold confidential information. The Investigating Officer notified the applicant of the Council’s reliance on section 42(m)(i) and invited submissions which were duly received.
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 submissions made by both parties. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records it provided when processing the request.
This review is concerned solely with whether the Council was justified in refusing, under sections 35, 37 and/or 42(m) of the FOI Act, records 15, 16, 17, 18, 20, 22, ,23, 24, 27, 29, 30, 31, 36, 37, 38, 42, 43, 45, 56, 57, 58, 60, 61, 62, 63, 64, 70, 71, 72, 74, 75, 81, and 82 pertaining to five planning enforcement files concerning the applicant.
Before I address the substantive issues arising, I wish to make some preliminary comments.
First, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the records sought was justified.
Secondly, section 18(1) of the FOI Act provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the public body concerned considers appropriate, of the record with the exempt information removed. The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.
Thirdly, while section 22(10) of the FOI Act requires that I give reasons for my decisions, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Therefore, the extent to which I can describe the content of the records at issue, and the Council’s submissions, is somewhat limited.
As I have outlined above, while the Council originally relied on sections 35 and 37 of the Act to refuse access to the records at issue, it subsequently also considered section 42(m)(i) to be relevant. As section 42 restricts the applicability of the FOI Act in certain circumstances, I consider it appropriate to consider the applicability of section 42(m) first.
The applicant submitted that, as a matter of precedent, similar requests under FOI to other local authorities have been granted with the names of the complainants being redacted, thus protecting the anonymity of the complainant. It said that, while section 42(m)(i) of the FOI Act 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, it is clear that it is accepted by local authorities that the redaction of the information relating to the complainant is a reasonably acceptable form of protecting the identity of the complainant and that a consistent approach should be adopted across all local authorities.
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, 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.
The records at issue concern complaints made to the Council in respect of alleged unauthorised development at the applicant’s premises. I am satisfied that the release of the names and contact details (including email addresses and phone number(s)) of the complainant(s), and/or their representatives if any, contained in the records would reveal the identity of the supplier of information. I find, therefore, that the first condition is met with respect to all such information contained in the records at issue.
While I believe I am constrained by section 25(3) from providing reasons, I am also satisfied that the release of pages 3 to 5 of record 16 could reasonably be expected to reveal, or lead to the revelation of the identity of the supplier of information and that the first condition is met in respect of those pages. On the other hand, I am not satisfied that the release of any of the remaining information could reasonably be expected to reveal, or lead to the revelation of the identity of the supplier. The mere possibility, no matter how remote, that the release of information might lead to the revelation of the identity of the supplier is not sufficient for section 42(m)(i) to apply. The FOI body must consider the reasonableness of its expectation that it will do so. In examining the merits of an FOI body’s view that the release of information could reasonably be expected to lead to the revelation of the identity of the supplier, this Office does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the FOI body’s expectation is reasonable. It is sufficient for the FOI body to show that its expectations are justifiable in the sense that there are adequate grounds for the expectations. In my view, the remaining information lacks any real level of detail whose release might lead to the revelation of the identity of the supplier. As such, I find that section 42(m)(i) cannot apply to that information.
The second requirement for section 42(m)(i) to apply is that the information supplied was given in confidence. The information I must consider here is solely that information I have identified above as meeting the first requirement, namely that its disclosure could reasonably be expected to reveal, or lead to the revelation of the identity of the supplier of the information.
In its submissions, the Council said the information withheld was given in confidence and on the understanding that it would be treated as confidential. It said its Planning Department receives complaints from members of the public regularly which it is obliged to investigate. It said that the release of such confidential information would undermine the ability of the local authority to conduct investigations in a similar process in the future. I also note that the Council informed the complainant(s) that it is Council policy to treat complaints as given in confidence. 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. In this case, I am satisfied that the information whose release could reasonably be expected to reveal, or lead to the revelation of the identity of the supplier of the information was supplied in confidence and that the second condition is met in respect of this information.
The third requirement for section 42(m)(i) to apply is that the information supplied must relate to the enforcement or administration of the law. I accept that the information at issue relates to the Council’s enforcement and/or administration of the Planning and Development Act 2000, as amended, and that Councils have a responsibility to examine and investigate all complaints received as part of their statutory role under this Act. I am satisfied that the information at issue comprises part of the overall information that relates to the enforcement or administration of the law and that the third requirement is therefore met.
In conclusion, therefore, I find that the Council was justified in refusing access, under section 42(m)(i) of the Act, to the names and contact details (including email addresses and phone number(s)) of the complainant(s), and/or their representatives if any) contained in the records and to pages 3 to 5 of record 16.
Accordingly, I will now proceed to consider the applicability of the other exemptions cited only to the information in the records to which I have found section 42(m)(i) not to apply.
Section 35(1)(a)
Section 35(1)(a) provides for the mandatory refusal of a request if the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
For section 35(1)(a) to apply, it is necessary to show that;
• the information was given to an FOI body in confidence,
• the information was given on the understanding that it would be treated by the FOI body as confidential,
• disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• it is of importance to the body that such further similar information should continue to be given to the body.
In its submissions, the Council said it was satisfied that the information in the records was given in confidence and on the understanding that it would be treated by it as confidential. It argued that the release of such confidential information would undermine its ability to conduct investigations of such planning complaints in the future.
In respect of the first two requirements for section 35(1)(a) to apply, it is relevant to consider, among other things, the expectations of the person who provided the information, the nature of the information at issue, and the purposes for which it was provided. I am satisfied that the complaint(s) made to the Council in this case were for the purpose of wanting the Council to investigate alleged breaches of the planning legislation. It is clear that in order to do so, the complainant(s) would have understood that the substance of the complaint(s) would have to be put to the applicant by the Council to allow the applicant an opportunity to respond. Indeed, the principles of natural justice and fair procedure would require that this be done. I do not accept, therefore, that the substantive information concerning the nature of the complaint(s) was provided in confidence. I accept that the complainant(s) may well have made the complaint(s) on the understanding that their identities would remain confidential but it is worth restating here that the remaining information at issue contains no identifying information, in my view. Rather, it comprises the substance of the allegations and queries about the progress of the Council’s investigation of the complaint(s). Having regard to the nature of the remaining information at issue, I am satisfied that such information was not given to the Council in confidence and on the understanding that it would be treated as confidential. I find, therefore, that section 35(1)(a) cannot apply.
I would add, for the sake of completeness, that a number of the records at issue were created, in whole or in part, by Council staff. The parts of the records prepared by Council staff comprise emails and email threads with acknowledgements and letters providing updates to the complainants. Section 35(2) of the FOI Act provides that section 35(1) shall not apply to a record which is prepared by a member of the staff of an FOI body in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. I am satisfied that the release of the records would not constitute a breach of a duty of confidence that is provided for by an agreement or statute and no argument has been made that disclosure of the records would constitute a breach of a duty of confidence that is provided for otherwise by law. In circumstances where the release of the information at issue would not, in my view, involve the disclosure of the identity of the complainant(s), I cannot see how the release of that information would involve a breach of a duty of confidence owed to the complainant(s).
Section 37(1)
Section 37(1) of the FOI Act provides for the mandatory refusal of a request if granting access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the FOI Act, personal information means information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. For information to qualify as personal information, therefore, it must be information about an identifiable individual. In circumstances where I have already found the information whose disclosure could reasonably be expected to reveal, or lead to the revelation of the complainant(s) to be exempt from release under section 42(m)(i) and where the remaining information at issue contains no identifying information, I find that section 37(1) cannot apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that it was justified in refusing access, under section 42(m)(i) of the Act, to the names and contact details (including email addresses and phone number(s)) of the complainant(s), and/or their representatives if any) contained in the records and to pages 3 to 5 of record 16. I find that it was not justified in refusing access to the remaining information in the records under sections 35, 37 or 42(m)(i) and direct the release of that information.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator