Decision
Ms H and Clare County Council
From Office of the Information Commissioner (OIC)
Case number: 130279
Published on
From Office of the Information Commissioner (OIC)
Case number: 130279
Published on
Whether the Council was justified in its decision to refuse a request, made under section 7 of the FOI Act, for access to the applicant's housing file including allegations of anti-social behaviour against the applicant, on the basis that the records are exempt from release under various provisions of the FOI Act
13 May 2014
The applicant made an FOI request to Clare County Council on 25 June 2013. Following a request for clarification from the Council on 27 June 2013 the applicant clarified through her solicitor on 16 July 2013 that she was seeking access to her housing file.
In its decision dated 1 August 2013 the Council part-granted the applicant' request. Access to redacted parts of records R1 and R2 was refused under Section 28 of the FOI Act as it was considered that release of those records would involve the disclosure of personal information of third parties. The applicant applied for internal review of that decision on 4 September 2013. In its internal review decision of 23 September 2013 the Council affirmed the original decision to refuse access to records R1 and R2 under section 28, and also applied sections 23 and 26 of the FOI Act.
The applicant wrote to this Office on 7 November 2013 seeking a review of the Council's decision.
I note that Ms Anne O'Reilly, Investigator of this Office, wrote to the applicant by email on 28 February 2014 setting out her preliminary views on this case. The applicant responded on 27 March 2014 and requested a binding decision be made. I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting this review, I have had regard to the submissions of the Council and those of the applicant. I have also had regard to additional information and clarification provided by the Council and to the provisions of the FOI Act. I have examined the contents of the records, copies of which have been provided to this Office by the Council for the purposes of this review.
This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the withheld records identified above on the basis that they are exempt from release under the provisions of the Act.
The records at issue in this case consist of details of complaints of anti-social behaviour made to the Council about the applicant. The Office of the Information Commissioner does not have a role in examining how the Council dealt with any allegations which may have been contained in the records requested. Additionally, the FOI Act at section 8(4), specifically prohibits a decision maker, subject to the provisions of the Act, from having regard to any reason the applicant may have for making the request for access.
I also wish to make the point that, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is somewhat limited. Although I do not comment on all of the submissions made by the applicant, their content, where relevant, has been taken into account.
In its decisions on the applicant's request FOI request, the Council relied on Sections 23, 26, and 28. Given that the point at issue in this case is the identity of the person or persons that made the complaints against the applicant, in my view, Section 23(1)(b) is the most appropriate provision under which to review this application.
The applicant's solicitor has sought review of the decision of the Council and are seeking access to the withheld records R1 and R2; they maintain they are our entitled to know the author and contents of any complaint made against the applicant under the principles of fair procedure and natural justice.
Section 23(1)(b) of the FOI Act states:
A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-
(b) 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.
In order for this exemption to apply, three specific requirements must be met:
Having examined the records at issue, I am satisfied that they clearly reveal the identity of the person(s) who made the complaint(s). I am also satisfied that directing the release of the content of information provided by the members of the general public could lead to the identification of the person(s) concerned, even if names were to be redacted.
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. In order for the Council to take responsive measures to deal with alleged anti-social behaviour in their management of local authority housing they must facilitate complaints to be made in a variety of ways. The Council states that it considers its complaints system a confidential service and makes every effort to protect the identity of complainants. I accept that, without an assurance or understanding that information provided was being provided in confidence, persons may be reluctant to make complaints about anti-social behaviour.
In this case, the Council outlines that the information was given to it in confidence, and that it is its normal procedure to accept such information as having been made in confidence. I see no reason not to accept the Council's position that it is satisfied that the information was given in confidence by the complainant. Accordingly, I find that the information at issue was given in confidence and that the second condition has been met.
It is clear that local authorities are required under the Housing Acts to make decisions relating to the management and tenancy of its housing stock, and in furtherance of this to investigate and consider complaints of anti-social behaviour against its tenants. I am satisfied that in receiving such information, and in treating it in line with its Anti-Social Behaviour Strategy, the Council was performing its statutory functions under the Housing Acts and that the information in question therefore relates to the enforcement or administration of the civil law.
Accordingly, it is my view that the information given does relate to the enforcement or administration of the civil law. On this basis the third requirement of section 23(1)(b) has been met.
Subsection 23(3) of the FOI Act provides that 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 subsection 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in 23(3) may be considered only where certain circumstances arise. Those circumstances are where the record 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 merits of any programme for prevention, detection or investigation of breaches of the law. I am satisfied that no such circumstances arises in this case and that subsection 23(3) does not apply.
I find, therefore, that under the provisions of 23(1)(b), the Council is justified in its decision to refuse access to the withheld records. As I find that the records in question are exempt from release under 23(1)(b) of the FOI Act it is not necessary for me to consider any other exemptions claimed by the Council.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the Council's decision to refuse access to the records concerned in accordance with section 23 of the FOI Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an 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