Decision
Mr X and Kerry County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-123826-D3T6K6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-123826-D3T6K6
Published on
Whether the Council was justified in refusing to release, under sections 35, 37, 42(m), 29, 30(1)(a) and 32(1)(a) of the FOI Act, records of complaints and correspondence with third parties about two named food businesses between January 2020 and March 2022
5 October 2022
The applicant submitted an FOI request to the Council on 5 April 2022 for records of complaints relating to two named food businesses and correspondence with third parties about them, for the period January 2020 to end March 2022. In its decision dated 27 April 2022, the Council refused access to the 17 records it identified as falling within the scope of the request under sections 35, 37, 42(m), 32(1)(a)(i), 32(1)(a)(ii), 29 and 30(1)(a) of the FOI Act. The applicant sought an internal review of that decision on 27 April 2022, wherein he also suggested that only one of the named food businesses had been included. On 19 May 2022, the applicant applied to this Office for a review of the Council’s decision stating that he had not received a response to his internal review request and the deadline had lapsed. On 20 May 2022, the Council issued its internal review decision wherein it affirmed its refusal of the request.
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 by the Council and by the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Council confirmed to this Office that when processing the FOI request it had included relevant records for both of the food businesses named in the applicant’s request. The investigating officer informed the applicant of the Council’s position and he agreed that the scope of the review would be confined to the question of whether the Council was justified in refusing access to the 17 records at issue under various provisions of the FOI Act.
In his submissions to this Office, the applicant said that he believed the records should be released to him because he believed that there were defamatory claims made about his business and its employees, because he believed that he had the right to all complaints made about his business, and to rule out any possible conflict of interest by Council employees related to complaints about his business. Section 13(4) of the 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 generally 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 true public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Moreover, section 18(1) of the Act 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 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). I take 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, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.
The Council relied on sections 29, 30(1)(a), 32(1)(a)(i), 32(1)(a)(ii), 35, 37, and 42(m) in refusing to release the records it identified as relevant to the applicant’s request. Having regard to the circumstance of the case, and because section 42 restricts the applicability of the FOI Act in certain circumstances, I consider it appropriate to consider the applicability of section 42(m) first.
Section 42(m)
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). 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 as the Act does not apply to such records.
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. We take the view that it is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the law.
For section 42(m)(i) to apply, three 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 must have been given in confidence, while the third is that the information must relate to the enforcement or administration of the law.
First requirement
The withheld records each contain the name and/or email address of a person or persons who complained to the Council about alleged unauthorised development. During the course of the review, the Investigating Officer sought the Council’s position on the release of redacted versions of the records, with the names of the complainant(s) redacted. In response, the Council argued that the information in the records is such that, even if the identity of the complainant(s) was redacted, its disclosure could reasonably be expected to lead to the revelation of the identity of the complainant(s). It described the location of the businesses as being in a small residential area and a tight-knit community. Having regard to the Council’s submissions, and having regard to the provisions of section 18 of the Act as outlined above, I am satisfied that the first condition has been met in this case.
Second requirement
The second requirement for section 42(m) to apply is that the provider of information must have provided that information in confidence. The Council said that it was of the view that, by its nature, the information in relation to planning complaints is given in confidence. It said that it relies on members of the public providing information to support the Council in the enforcement of its statutory functions in this area. It said that if complainants’ identities were revealed, it believed that this would have a detrimental impact on the flow of information. It pointed to a standard paragraph used by the Council in response to complaints of this nature wherein it says that while it cannot give absolute guarantees of confidentiality, it will endeavour to maintain as confidential any complaints regarding unauthorised development made to it in confidence and in good faith.
The Council added that the subsequent investigation by its Enforcement Unit would have outlined to the applicant the nature of the complaints made in relation to the premises. Having regard to the nature of the information at issue and to the Council's position on the matter, I accept that the information whose release could reasonably be expected to lead to the revelation of the identity of the complainant(s) was given in confidence and I find that the second requirement has been met.
Third requirement
The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law. The Council said that it has responsibilities under the Planning & Development Act 2000-2020 to deal with complaints of this nature and that an enforcement notice had been served under Section 154/155 of the Planning & Development Act 2000-2020. I am satisfied that the third requirement has been met.
Having found that each of the three requirements are met, I find that the Council was justified in refusing access to the records 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 the other sections of the Act also apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that it was justified in its decision to refuse, under section 42(m) of the FOI Act, the 17 records relating to complaints about the applicant’s food business.
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