Decision
Mr Z and Cavan County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150229-B8N7N9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150229-B8N7N9
Published on
Whether the Council was justified in refusing access, under section 42(m) of the FOI Act, to the identity of the person who made a planning complaint to the Council relating to the applicant’s property
28 November 2024
In December 2021, a planning inspector from the Council visited the applicant’s property to investigate a complaint alleging that a shed may have been erected without planning permission. The applicant said he informed the inspector that he had received a planning exemption from the Council and provided the inspector with a reference number. The Council later confirmed that the structure was granted a certificate of exemption and it was recommended that the case be closed from a planning enforcement perspective.
On 19 April 2024, the applicant made a request under the FOI Act to the Council for the identity of the person who made the complaint. On 9 May 2024, the Council refused his request under section 35(1)(a) of the Act on the basis that the information was given to it in confidence. The Council said its policy is to keep the name of the complainant confidential both during and after any enforcement proceedings, and afterwards when the case is completed. The applicant sought an internal review of the Council’s decision saying the complaint was completely unfounded as he has a planning exemption. He also said the inspector who visited his property was wrong when he informed the applicant that the Council had no record of the planning exemption. On 20 June 2024, the Council affirmed its original decision. On 27 June 2024, the applicant applied to this Office for a review of the Council’s decision.
During the course of this review, the Council made submissions to this Office that the identity of the complainant should not be released under sections 35(1) and 42(m) of the FOI Act. The Investigating Officer notified the applicant of the Council’s position and invited submissions from him. In his submissions, the applicant requested an investigation into the origins of the complaint and asked for a copy of the complaint itself. The applicant also wanted to know why the inspector was unable to find his relevant planning exemption before presenting at his property.
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 outlined above and to the submissions made by the Council and the applicant during the course of this review. I have also had regard to the content of the complaint that was provided by the Council to this Office for the purpose of this review. I have decided to conclude this review by way of a formal, binding decision.
While I note that in his submissions to this Office the applicant said he wants a copy of the complaint made to the Council, the jurisdiction of this Office is based on the wording of the applicant’s original FOI request. Accordingly, this review is concerned solely with whether the Council was justified, under section 42(m) and 35(1) of the FOI Act, in refusing the applicant’s request for the identity of the individual who made the complaint regarding his property.
Before I address the substantive issues arising, I wish to address some preliminary matters.
Firstly, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Secondly, while the applicant believes there should be an investigation into the origins of the complaint and why the inspector was unable to find his relevant planning exemption before presenting at his property, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism regarding the actions of FOI bodies.
Finally, section 22(10) of the FOI Act requires that I give reasons for my decisions subject to the requirement at section 25(3) that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Therefore, the extent to which I can describe the content of the record at issue, and the Council’s submissions, is somewhat limited.
Section 42(m) 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 – reasonable expectation to reveal the identity
After reviewing a copy of the complaint, the Investigating Officer noted that the complaint was made anonymously and asked the Council why it considers that information contained in the complaint could reveal the identity of the complainant. In its submissions, the Council contends that release of the record could still indirectly reveal the identity of the complainant. While I am limited by section 25(3) of the Act in what I can say about the particulars of the complaint itself, and the submissions made by the Council, I accept the Council’s argument. Having regard to the content of the complaint, I accept there is certain information contained in the complaint the disclosure of which could reasonably be expected to reveal, or lead to the revelation of, the identity of the person(s) who made the complaint.
Second requirement – confidentiality
The second requirement for section 42(m) to apply is that the information must have been provided in confidence. In its submissions, the Council said it is reliant on members of the public providing information in relation to planning complaints which supports the Council in the enforcement of its statutory duties. It said revealing the identities of complainants would have a negative impact on the flow of information received from members of the public, as it could deter members of the public from cooperating further and/or reporting any matters to the Council in the future.
The Council said it is Council Policy to not reveal the identity of a complainant. The Council referred to publicly available information on its website which states that complainant “details are treated in the strictest of confidence and are not released to any third party and are not entered in Cavan County Council’s Planning Register. It is Cavan County Council’s policy to keep the name of the complainant confidential both during the course of any enforcement proceedings, and afterwards when the case is completed.” The policy goes on to say that information concerning planning complaints is subject to the provisions of the FOI Act 2014 and may be subject to disclosure. The policy also says that, in exceptional circumstances, this information may be subpoenaed by a Court.
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 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 considered the Council’s submissions in the matter, 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 – enforcement or administration of the law
The third requirement is that the information provided relates to the enforcement or administration of the law. The Council said that the planning authority has a responsibility to examine and investigate all complaints received as part of its statutory role under the Planning and Development Act 2000 as amended. It said responding to complaints assists the planning authority identify if there are potential planning breaches which requires further enforcement actions. I am satisfied that the information provided relates to the enforcement or administration of the law.
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)(i) of the FOI Act. As I have found that section 42(m) of the Act applies, it is not necessary for me to consider the Council’s reliance on section 35(1) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse the identity of the person(s) who made the planning complaint relating to the applicant’s property, under section 42(m)(i) of the FOI Act.
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.
Richard Crowley
Investigator