Decision
Mr Q and Waterford City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-153004-Y1J3L0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153004-Y1J3L0
Published on
Whether the Council was justified in refusing access to a copy of a complaint it received about the applicant under Section 42(m) of the FOI Act
13 March 2025
In a request dated 6 December 2023, the applicant sought access to a copy of a complaint about him and his mother submitted to the local dog warden regarding puppy breeding. On 18 December 2023, the Council refused the applicant’s request under section 42(m)(i) of the FOI Act on the ground that disclosure of the information contained in the record could reveal the identity of a person who provided information in confidence to the Council. On 5 March 2024, the applicant requested an internal review of that decision, saying that he had been informed by the local dog warden that the complaint contained personal information relating to him and his family, which he argued should not have been disclosed to the Council. He said there have been a number of unfounded and false allegations made to the local dog wardens and ISPCA over the last number of years. He said he wants to find out who is making these false allegations that are causing upset and distress to him and his family. On 13 March 2024, the Council affirmed its original decision. On 16 October 2024, the applicant applied to this Office for a review of the Council’s decision, asking that the person making these complaints be exposed in order to stop this harassment.
During the course of this review the investigating officer provided the applicant with details of the Council’s submissions and invited him to make further comments, which he duly did. The applicant argued that in the context of what he called ongoing harassment and no evidence of wrongdoing found by the Council, that there should be no right to anonymity. He added that he was making a formal request under the General Data Protection Regulation (GDPR) for access to the information contained in the complaint.
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 both parties during the course of this review. I have also had regard to the content of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Council was justified in refusing access to the complaint it received under section 42(m)(i) of the FOI Act.
I wish to make a number of preliminary comments before I address the substantive issue arising in this case. First, 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, in his submissions to this Office the applicant suggested the information at issue should be released under GDPR. It is important to note that the FOI Act is an entirely separate legislative regime to GDPR. This Office has no role in a relation to a review of a request relating to data protection.
Finally, it is important to note that although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the content of the record at issue is 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
While the complaint made to the Council does not contain the name of the complainant, in its submissions to this Office the Council said that the record sought contains information that may help to identify the complainant. While I am limited in what I can say about the content of the record in question, I am satisfied from the level of detail contained in the record that disclosure of the record could reasonably be expected to reveal, or lead to the revelation of the identity of the complainant.
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 the Environment Department does not disclose the names of a complainant to the person to whom the complaint refers to and applies this approach to all complaints received.
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.
The applicant said that the complaint was unfounded and contains false allegations and argues that such complaints should not be treated as having been made in confidence. While I have noted the applicant’s comments that no wrong doing was found, this Office accepts that bodies such as the Council act upon every report such as the type at issue in good faith and that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could reasonably be expected to prejudice the flow of information which bodies such as the Council rely upon to carry out their functions. Having regard to the nature of the information at issue and to the Council's position on the matter, 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 that when the Dog Control Unit receives a complaint or notification regarding the alleged operation of a Dog Breeding Establishment it is obliged to investigate the complaint under the Dog Breeding Establishments Act 2010 to ensure such a facility is not in breach of said Act. 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.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refusing access to the record at issue 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