Decision
Mr X and Kerry County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-148782-G5B5Z8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148782-G5B5Z8
Published on
Whether the Council was justified in refusing to grant access under sections 35(1), 37(1), and 42(m) of the FOI Act, to the identify of individuals who had submitted complaints to Kerry County Council regarding certain specified developments
12 September 2024
On 22 March 2024, the applicant submitted a request to the Council for access to the name of the complainant with regard to two specified cases concerning development works at an identified location. On 2 April 2024, the Council issued its decision wherein it refused access to three records it identified as coming within the scope of the request, under sections 35(1)(a), 37(1), and 42(m) of the FOI Act.
On 8 April 2024, the applicant sought an internal review of that decision. He suggested that the complaints form part of a campaign of unchallenged harassment against him and his family. On 29 April 2024, the Council issued its internal review decision, wherein it affirmed its refusal of the request under sections 35, 37, and 42(m) of the Act. On 7 May 2024, the applicant sought a review by this Office 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 correspondence between this Office and both parties 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 access, under sections 35(1), 37, and/or 42(m) of the FOI Act, to name of the complainant(s) in the two cases specified.
I note that in his correspondence with the Council and with this Office, the applicant said he was seeking the identity of the complainant(s) in order to facilitate mediation with a view to resolving ongoing disharmony. 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).
The Council relied on sections 35(1)(a), 37, 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)(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.
First Requirement
As the information sought is the identity of the complainant(s), I am satisfied that the release of that information would reveal the identity of the supplier(s) of the information concerning the two specified cases identified by the applicant.
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 by its nature, the information in relation to planning complaints is given in confidence. The Council said it relies on members of the public providing information in relation to planning complaints, which in turn supports the Council in the enforcement of its statutory functions in this area. The Council also said it believed that revealing the identities of complainants would have a detrimental impact on the flow of information from members of the public giving information to the Council, and that it would undermine the public’s confidence in its ability to protect personal or sensitive information given to it by members of the public.
The Council said its general policy regarding complaints received - which is outlined on its complaints form - is that it will endeavour to maintain as confidential any complaints made to it in confidence and in good faith. The Council said that in some instances complainants will be asked whether they wish to remain anonymous, but even in circumstances where a response is not received from the complainant, due to the nature of the complaints process there is an understanding from the Council that the public expect complaints made to be treated and kept as confidential, and that their identity should not be revealed to third parties.
The applicant argued that the complaints made in this case formed part of an ongoing campaign of harassment of him and his family. In essence, he suggested that the complaints were made in bad faith. He also stated that whilst he acknowledged that section 42(m) provides for the protection of the identity of those who have given information in confidence in relation to the enforcement or administration of the law, he did not believe that that revealing the identity of the complainant(s) in the two cases he had identified would deter the complainant(s) form making further complaints.
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. Thus, section 42(m)(i) may
apply where information was given in confidence, but is subsequently found to be
mistaken or unfounded. Moreover, while it may be argued that an untruthful or maliciously made complaint cannot be regarded as information provided in confidence, we give significant weight to safeguarding the flow of information to FOI bodies. We accept that bodies such as the Council act upon every report such as the type at issue in this case in good faith and that the disclosure of the identity of complainants- even where the applicant suggests that the complaints were maliciously motivated, or where it was subsequently found to be without foundation- could reasonably be expected to prejudice the flow of information, which bodies such as the Council rely upon to carry out their functions.
The Council’s policy for handling complaints is outlined on its complaint’s form as follows:
“The Council will endeavour to maintain as confidential any complaints made to it in confidence and in good faith. The Council cannot however, give absolute guarantees on this as requests under the Freedom of Information Act can be appealed by requesters to the Information Commissioner.”
The applicant said he believes this policy is ‘skewed toward the anonymity of the complainant’. He has also made the argument that because the complainants were made aware of the possibility of release of their information, they should not be surprised if their information is released. I acknowledge that the Council’s policy accepts it cannot guarantee with absolute certainty the confidentiality of a complainant’s identity, however, I am satisfied that the notice above clearly demonstrates the Council considers information of this kind to be given in confidence. As a result, it is reasonable, in my view, for members of the public making complaints to expect that their identities will be treated as confidential.
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.
Third Requirement
The third requirement is that the information provided relates to the enforcement or administration of the law. The Council said it has responsibility to examine and investigate all complaints received as part of its statutory role under the Planning & Development Act 2000-2020. It said that through this process the Local Authority identifies if there is a potential planning breach which requires further enforcement action. 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) of the FOI Act. Having found section 42(m) to apply, it is not necessary for me to consider whether section 35(1) and/or section 37 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 name(s) of the complainant(s) in the two specific cases identified 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.
Senior Investigator