Decision
Mr H and South Dublin County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-120540-C7W8J3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-120540-C7W8J3
Published on
Whether the Council was justified in refusing access to records relating to a noise complaint on the basis of sections 35(1)(a), 37(1) and 42(m) of the FOI Act
9 August 2022
The applicant in this case has made three FOI requests for records relating to noise complaints made to the Council. Through his solicitor, he has had protracted dealings with the Council in respect of same. All references to the applicant throughout this decision refer to the applicant or his solicitor as appropriate.
This case relates to the third such FOI request. In a request dated 20 August 2021, the applicant sought access to previously withheld information in records relating to an “alleged noise nuisance emanating from his premises”. In a decision dated 21 September 2021, the Council part-granted the request, withholding certain records in whole or in part on the basis of sections 35(1)(a), 37(1) and 42(m). On 26 January 2022, the applicant sought an internal review of the Council’s decision. On 18 February 2022, the Council affirmed its original decision on the same grounds. On 10 March 2022, the applicant applied to this Office for a review 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 submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Council have identified 11 records which it says fall within the scope of the applicant’s request. Two records have been refused and nine have been part-granted.
Accordingly, this review is concerned solely with whether the Council was justified in refusing access to the records concerned in full or in part on the basis of sections 35(1)(a), 37(1) and 42(m) of the FOI Act.
It is important to note that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material.
In correspondence to the Council, the applicant raised concerns that certain released documents referenced other documents which were not disclosed. While mindful of the requirement at section 25(3), I am satisfied that I have had sight of all relevant documents and have considered same in arriving at this decision.
Finally, Section 2 of the Act defines “record” as including “a copy or part” of anything falling within the definition of a record. Section 18(1) 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 head of the FOI 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).
The Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Having regard to the nature of the request and to the contents of the records at issue, I have decided to consider the applicability of section 42(m) in the first instance.
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 the identity of a person who provided information in confidence or the source of such information.
While the Council has referred to section 42(m) in its decision making records and submissions, I am satisfied, having reviewed the records in question, that it is section 42(m)(i) which is relevant.
Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of 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.
In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law, in order to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.
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 provided must have been provided in confidence, while the third is that the information provided must relate to the enforcement or administration of the law.
First requirement
The applicant’s FOI request states that he is not seeking access to “any personal information that was redacted and that would be capable of identifying the complainant…”.
As noted above, I must take all reasonable precautions to prevent the disclosure of exempt information in the course of a review. Accordingly, while I am constrained in the extent of the detail I can give, having reviewed the records in full, I am satisfied that the release of any part of records refused in full or in part could reasonably be expected to reveal, whether directly or indirectly, the identity of the person who supplied the information to the Council. I am satisfied that the first condition is met.
Second requirement
The second requirement is that information must have been provided in confidence. The records at issue concern noise complaints. The Council has provided evidence to support its position that information relating to the complaints was provided in confidence. This includes statements made by the complainant and administrative notes relating to required anonymity.
This Office accepts, as a general proposition, 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 records and the information referenced above, I am satisfied that the information was provided in confidence in this case. Accordingly, I am satisfied 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 says that the relevant legislation in this regard is the Environmental Protection Agency Act 1992. It has referred this Office to section 107 of that Act which concerns the power of local authorities or agencies to require measures to be taken to prevent or limit noise. As the records at issue concern noise complaints, I am satisfied that the third requirement is met in this case.
Having found that each of the requirements for section 42(m)(i) are met, I find that the Council was justified in refusing access to the records sought under that section. Having found section 42(m)(i) to apply, I do not need to consider the applicability of the other exemptions claimed by the Council.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse, under section 42(m)(i) of the Act, the applicant’s request for access to in the remaining records or records at issue in full or in part relating to noise complaints.
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.
Stephen Rafferty, Senior Investigator