Decision
Ms. X & Louth County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: OIC-160507-Q4H3K6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-160507-Q4H3K6
Published on
Whether the Council was justified, under sections 35(1) and 42(m) of the FOI Act, in refusing the applicant access to a complaint about her
28 October 2025
On 25 February 2025, the applicant submitted a request to the Council for details about the neighbours who made a complaint against her i.e. the neighbours name, the date and time of the alleged incident. The applicant argued that without these details she was not in a position to defend herself against the allegations. On 14 March 2025, the Council refused the applicant’s request under section 35 of the FOI Act. The Council stated that the record sought had been provided in confidence, and its disclosure would likely prejudice the giving of similar information to the Council in the future.
On 28 March 2025, the applicant sought an internal review of the Council’s decision. On 21 April 2025, the Council affirmed its original decision. On 7 July 2025, the applicant applied to this Office for a review of the Council’s decision.
During the course of the review, the Council made submissions to this Office that, in addition to relying on section 35 of the Act to refuse the request, it also considered the information sought is exempt under section 42(m) of the Act. The Investigating Officer provided the applicant with details of the Council’s submissions, including its reliance on section 42(m) and invited the applicant to make submissions on the matter if she wished. The applicant has not responded to date.
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 correspondence between this Office and both parties on the matter. I have also had regard to the contents of the record in question. 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 access, under sections 35(1) and 42(m) of the FOI Act, to a copy of a complaint it received about the applicant.
Before I address the substantive issues arising, I would like to make some preliminary comments.
First, it is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of section 42(m) to the record which has been refused, notwithstanding the fact that this provision was not relied upon initially by the Council as a ground for refusing the request.
Second, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
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.
The Council relied on sections 35(1)(a), 35(1)(b), and 42(m) to refuse access to the information sought. As section 42 restricts the applicability of the FOI Act in certain circumstances, I will consider the applicability of section 42(m) first.
Section 42(m)
Section 42(m)(i) 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 record at issue is a complaint made to the Estate Management Section of the Council. In its submissions to this Office, the Council said that disclosure of the information contained in the record would directly or indirectly identify the individual who made the complaint. It said, even where names are redacted, the context of the complaint (timing, location, description of events) could reasonably be expected to identify the complainant. Having examined the record, I am satisfied that the release of the record, even in redacted form, could reasonably be expected to reveal the identity of the complainant. Accordingly, I am satisfied that the first condition is met.
The second requirement for section 42(m) to apply is that the information must have been provided in confidence. In its submissions, the Council said the information contained in the record was provided in confidence, with a clear understanding that the complainant’s identity would remain confidential. The Council said that, as a matter of course, all complainants are expressly assured that their details will not be shared with the subject of the complaint, in order to encourage reporting and the flow of information.
Having regard to the Council's submissions, I accept that the information was given in confidence in this case, and I find that the second requirement has been met.
The third requirement is that the information provided relates to the enforcement or administration of the law. The Council stated that the information contained in the record was provided in connection with the Council’s statutory responsibilities in the management of its housing estates. The Council stated that its functions in this regard are grounded in the Housing (Miscellaneous Provisions) Acts 1997-2014, which sets out powers and duties for local authorities regarding the management of local authority housing. 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 the Council was justified in refusing access to the record 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 section 35(1) of the Act also applies.
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) of the Act, to the record sought by the applicant.
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.
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Richard Crowley
Investigator