Decision
Mr Z and Mayo County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 140058
Published on
From Office of the Information Commissioner (OIC)
Case number: 140058
Published on
Whether the Council was justified in its decision to refuse access to records containing information which would reveal the identity of the person who made a complaint about the applicant to the Council
13 May 2014
On 15 October 2013 the applicant made a request to the Council seeking a copy of a complaint made against him in relation to alleged breaches of planning permission. In its decision letter dated 18 November 2013 the Council decided to grant access to three records related to the complaint, but withheld details in one record which identify the person who made the complaint. It refused to release this information under section 26(1)(a) of the FOI Act. The Council affirmed its decision following internal review on 17 December 2013. The applicant then applied to the Information Commissioner for a review of the Council's decision on 6 March 2014.
Of the three records concerned, two were released fully and one with redactions. Accordingly, the only information remaining at issue is relating to the identity of the person who had made the complaint about the applicant. This review is solely concerned with the single record containing this information to which partial access was granted. During the course of the review, the Council provided this Office with a copy of this record.
On 22 April 2014, Ms Sandra Murdiff, Investigating Officer, informed the applicant of her preliminary view that the relevant section of the Act in this case was section 23(1)(b) and that, in her opinion, the Council had properly refused access to the name of the person who submitted the complaint to the Council. The applicant replied by email on 29 April 2014 to say that he was not satisfied with her preliminary view and confirmed on 7 May 2014 that he wished the Commissioner to issue a formal decision. In conducting this review I have had regard to the provisions of the FOI Acts, to the contents of the record concerned, to the correspondence between the Council and the applicant, and to the submissions of the Council and the applicant.
The scope of this review is concerned solely with the question of whether the Council was justified in deciding to refuse access to the part of the letter of complaint which would identify the person who submitted a complaint to the Council in respect of an alleged breach of planning permission by the applicant.
While the Council relied upon the provisions of section 26(1)(a) of the FOI Act in deciding to refuse access to the record at issue, I consider section 23(1)(b) to be of most relevance in this case.
The information withheld in this case comprises information relating to the identity of the person who made the complaint to the Council. Section 23(1)(b) of the FOI Act provides that a request for a record may be refused if release of the record could reasonably be expected to "reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence".
Section 23(1)(b) is an exemption provision aimed at ensuring that members of the public are not discouraged from co-operating with agencies engaged in the enforcement or administration of the civil law, by providing information which might assist such agencies to perform their functions more effectively. For the exemption to apply, three specific requirements must be met. The first is that the release of the withheld information would reveal directly or indirectly the supplier of the information. The second is that the information must have been given to the public body in confidence, while the third is that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.
As the identity of the person who made the complaint to the Council is the only information at issue in this case, the first requirement under section 23(1)(b) is clearly met.
I must now address the issue of whether the information was given to the Council in confidence. It is clear to me, in considering the core statutory functions involved, that it is necessary for Council officials, in the course of their duties, to be in a position to receive necessary information in confidence from members of the public. I recognise that much of the information the Council receives is received in confidence from people who do not wish to be identified. It is arguable that if people providing information to the Council in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. I accept that without an assurance or understanding that information being provided was provided in confidence, such persons may be reluctant to provide information. In its submission to this Office, the Council is of the view that the information was given in confidence on the understanding that it would be treated as confidential. Indeed, the record in question clearly states the complainant's "wish to remain anonymous".
I now refer to the applicant's contention that the issue of whether the information was provided in good faith is a factor to be considered. If the applicant's argument is that information of such a nature given in such circumstances can never be accepted as having been given in confidence, then I disagree. In previous cases (see, for example case no. 110158 available on this Office's website at www.oic.gov.ie), this Office has accepted that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public. Where the public body relies upon such information to carry out its functions, I give significant weight to safeguarding the inherent importance in protecting the free flow of information to the body. Accordingly, I find that the information at issue was given in confidence and that the second condition has been met.
Finally, the Planning and Development Acts 2000 to 2010 impose a legal obligation on a Planning Authority, such as the Council, to administer and enforce that legislation. I am satisfied that the information given in the record concerned relates to the enforcement or administration of the civil law. I find, therefore, that the third requirement of section 23(1)(b) has been met.
Section 23(3) provides that section 23(1)(b) does not apply in certain specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions under the FOI Act, in that the test in section 23(3) may be considered only where certain circumstance arise.
Those circumstances are where the record(s) discloses that an investigation is not authorised by law or contravenes any law; or it contains information concerning the performance by a public body of functions relating to law enforcement; or contains information concerning the effectiveness or the merits of any programme for prevention, detection, or investigation of breaches of the law. I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply. On this basis, all of the requirements for the application of section 23(1)(b) have been satisfied. I find, therefore, the Council was justified in its decision to refuse access to the identity of the person who made the complaint against the applicant.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Council in this case.
A party to a review, or any other person affected by the decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator