Request for access to identity of a complainant to the Censorship of Publications Board (the Board) whose complaint resulted in the censorship of a publication - whether complainant provided information to the Board in confidence in relation to the enforcement or administration of the civil law - section 23(1)(b)

Case Summary

Facts

Mr X sought access to the identity of a complainant to the Censorship of Publications Board whose complaint resulted in the censorship of a publication. The Board refused access under section 26(1)(a).

Decision

The Commissioner was not satisfied that the decision to refuse access under section 26(1)(a) was correct as it was not important that the identity of complainants continued to be given to the Board, as required to meet the test in section 26(1)(a). However, the Commissioner affirmed the Board's decision under section 23(1)(b), as access to the identity of the complainant could reasonably be expected to reveal 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. The Commissioner accepted the evidence provided by the Board and the complainant that the identity of the complainant would be treated in confidence. The Commissioner also accepted that the information given to the Board related the enforcement of the Censorship of Publications Acts.

Date of Decision: 22.12.2000

Our Reference: 99524

22.12.2000

Mr X

Dear Mr X

I refer to your application on behalf of Mr Y for a review of the decision of the Censorship of Publications Board (the Board) to refuse you access to a list of all complainants whose complaints resulted in the censorship of a publication. I apologise for the delay in dealing with your application.

Background

I have been authorised by the Commissioner to carry out a review on his behalf. In carrying out that review I have had regard to the Board's explanation for refusing you access to the information sought, the relevant record held by the Board and my contacts with one of the complainants involved. I note that Mr Nutley, Investigator, wrote to you on 30 November 2000 outlining his preliminary views and inviting you to make any comments which you consider may be relevant to this request. As I have not heard from you, I have decided to conclude my review by issuing a binding decision.

Scope of Review

As Mr Nutley advised you in his letter of 30 November 2000 two of the three complainants involved were the Garda Síochána. As a result, you agreed to confine the review to the identity of the remaining complainant, i.e. the complainant in relation to [name of publication].

Therefore, my review is concerned solely with the question of whether the decision of the Board to refuse you access to the identity of the complainant in relation to [name of publication] was justified.

Findings

The Board relied on section 26(1)(a) of the Freedom of Information Act in refusing you access to the information you are seeking. For the reasons outlined in Mr Nutley's letter I am not satisfied that the Board was correct in refusing you access on this basis.

While the Board did not rely on it specifically in refusing your request, I consider that section 23(1)(b) is relevant in this case. This section provides that a request may be refused if access to the record could reasonably be expected to reveal 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.

The Board has said that the information was given in confidence and on the understanding that it would be treated as confidential. I have contacted the complainant in this case and the complainant has confirmed that he/she was under the impression that his/her identity would not be disclosed and that this information was given in confidence.

The complainant did not point to any explicit assurance of confidentiality given by the Board but said that confidentiality was implied. The complainant pointed out that a complainant's identity is absolutely irrelevant to the validity of the complaint, that in making the complaint he/she did not expect to hear further from the Board (except to hear the final outcome) and, indeed, was told this by the person who accepted delivery of the complaint. I accept the complainant's evidence on these points.

The complainant further pointed out that in the event of prosecution by the Board, the complainant has no further role in the matter, so that his/her identity could not be ascertained as a result of court proceedings. I accept that the information as to the complainant's identity was given in confidence.

I also accept that the information given to the Board relates to the enforcement of the Censorship of Publications Acts and that the phrase "enforcement or administration of the civil law" in section 23(1)(b) is apt to cover the enforcement of those Acts.

Accordingly I am satisfied that the disclosure of the information sought would result in 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 as provided for in section 23(1)(b) of the Act.

I note that section 23(1)(b) is subject to the public interest test contained in section 23(3), a copy of which was supplied to you by Mr Nutley. As the information sought is the identity of an individual, I am satisfied that it does not meet any of the criteria set out in section 23(3)(a) and I find that that access would not be justified under that subsection.

Decision

Having carried out a review on behalf of the Information Commissioner under section 34(2), I have decided to affirm the decision of the Censorship of Publications Board to refuse you access to the identity of the complainant in relation to [name of publication].

A party to a review, or any other person affected by a decision of the 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 4 weeks from the date of this letter.

Yours sincerely

Senior Investigator