Decision
Ms Z and Limerick City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-153651-P5D3D9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153651-P5D3D9
Published on
19 February 2025
In July 2024, Community Sustainment Officers from the Council visited the applicant’s house on foot of an anti-social behaviour complaint made to the Council. In a request dated 26 July 2024, the applicant sought access to the complaint made against her and her household, and included an address from which she said the complaint had originated.
On 21 August 2024, the Council refused the applicant’s request under section 35(1) and 37(1) of the FOI Act. The Council said that the FOI request had been processed by the Housing Department which had advised that a complaint had been made to its Community Sustainment Team (CST) on the understanding that the communication would be treated as confidential. The Council said it cannot confirm who the complaint was made by. The Council said the CST relies on information provided by citizens relating to possible breaches of a tenancy agreement by its tenants and, in order to ensure a continued flow of this information, the Housing Department treats the providers of all information received on a confidential basis. The Council also refused the request as to do so would disclose personal information of other individuals.
On 26 August 2024, the applicant requested an internal review of the Council’s decision. She said the Council could redact the names and details of the complainant. On 14 September 2024, the Council affirmed its original decision. On 11 November 2024, the applicant applied to this Office for a review of the Council’s decision stating the complaint and subsequent visit by the Council had upset her and her son and that she wanted the complaint expunged from her tenancy record.
In submissions to this Office the Council said that section 42(m) of the Act, which protects the identity of the complainant, is also relevant. The Investigating Officer wrote to the applicant concerning the relevance of section 42(m) and invited her to make submissions, which she duly did.
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 outlined above, including the submissions made by both parties. I have also had regard to the content of the complaint that was made to the Council. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Council was justified in refusing access to the complaint sought by the applicant under sections 35(1), 37(1) and 42(m) of the FOI Act.
Before I address the substantive issue in the case, there are a few preliminary comments that I wish to make.
First, 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, which is not relevant in this case for the reason outlined below.
Secondly, it is important to note that the fact the applicant may be aware of certain information concerning the complaint made to the Council does not mean that the information and the identity of the complainant cannot be protected under the FOI Act. Furthermore, the release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
Thirdly, section 25(3) of the FOI Act requires this Office to take all reasonable precautions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This means that I am constrained in the level of detail I can give about the withheld information.
Finally, section 18(1) of the 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 body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or 'dissecting' of records to such an extent. Being 'practicable' necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
The Council originally relied on sections 35(1)(a) and 37(1) of the Act in refusing access to the record at issue. In submissions to this Office, the Council also considered section 42(m)(i) to be relevant. 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)
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
The record at issue is a complaint made to the Council’s Community Sustainment Team. As I have outlined above, under section 25(3) of the FOI Act, I must take all reasonable precautions to prevent the disclosure of exempt information in the course of a review. Accordingly, while I cannot give full reasons for doing so, I am satisfied that the release of the record, even in redacted form, could reasonably be expected to reveal the identity of the third party(s) concerned, and that the first condition is met.
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 Council is to treat complaints such as the one at issue in this case as being made 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. Having reviewed the content of the record and the Council’s submissions in the matter, I am satisfied that the information was provided in confidence and 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 legislative basis available to it to deal with incidents of anti-social behaviour is covered in a number of pieces of legislation, including the Housing Acts and Residential Tenancies Acts. Having regard to the nature of the complaint, I am satisfied that the information provided relates to the enforcement of administration of the law insofar as it pertains to the Council’s responsibility to deal with incidents, or alleged incidents, of anti-social behaviour as it pertains to tenancy agreements it has with its tenants.
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 found section 42(m)(i) to apply, I do not need to consider the applicability of the other exemptions relied on by the Council to refuse access to the record.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access to the complaint sought by the applicant under section 42(m)(i) of the FOI Act.
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