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Whether the Council was justified in its decision to refuse access to a record from the applicant's housing application file on the basis that it contains information obtained in confidence

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made a request to the Council on 23 April 2015 for all records relating to his housing application. In its decision of 21 May 2015, the Council granted access to 52 of the 53 records it identified as coming within the scope of the request. It refused access to one record on the ground that it contains information given to the Council in confidence. On 9 June 2015 the applicant sought an internal review of the Council's decision wherein he specified that he was not seeking details of the identity of the informant, but wished to know what had been said about him. On 1 July 2015, the Council issued an internal review decision, in which it affirmed its original decision to refuse access to the record. The applicant sought a review by this Office of the Council's decision on 24 September 2015.

During the course of this review, Mr Art Foley of this Office informed the applicant of his view that the Council was justified in refusing access to the record under section 42(m) of the FOI Act. The applicant stated that he required a decision on the matter. I therefore consider that this review should be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to the correspondence between the Council and the applicant, to communications between the applicant and this Office, to communications between this Office and the Council, and to the contents of the record at issue.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to the record at issue.

Preliminary Matters

It should be noted that a review under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Analysis and Findings

While the Council initially relied on section 35(1)(a) of the FOI Act to refuse access to the record, it also cited section 42(m)(i) in its submission to this Office. Having examined the record at issue, it is my view that section 42(m)(i) is the more relevant section to consider. Section 42(m)(i) 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 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.

This restriction provision 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 specific requirements must be met. The first is that the release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given to the FOI body in confidence, while the third is that the information must have been supplied to the public body in relation to the enforcement or administration of the law.

First requirement
The record is an computerised note of information relating to the applicant that was received by the Council. having carefully considered the contents of the record, I am satisfied that the release of the contents could reasonably be expected to lead to the revelation of the identity of the person who provided the information to the Council, even in circumstances where the name of the individual providing the information was not released. Thus, I find that the first requirement is met.

Second Requirement
The second requirement for section 42(m)(i) to apply is that the information must have been given to the Council in confidence. It is arguable that if people providing information to the Council in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. I accept that without an assurance or understanding that information being provided was provided in confidence, such persons may be reluctant to provide information. Having regard to the nature of the information at issue and to the Council's submission on the matter, I consider that the information was given in confidence in this case and I find that the second requirement has been met.

Third Requirement
The third limb of the restriction at section 42(m)(i) refers to the requirement that the information received by the FOI body relates to the enforcement or administration of the law. The Council is a housing authority for the purposes of the Housing Acts 1966-2009, and, as such, is responsible for the provision of housing services within its functional area. The information at issue relates to an application for housing. Therefore, I am satisfied that the third requirement for the restriction set out at section 42(m)(i) of the FOI Act is met.

Having found that each of the three requirements are met, I find that, under section 42(m)(i) of the FOI Act, the Act does not apply to the record at issue and that the Council was justified in refusing to release the record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision to refuse access to the record at issue. I find that, under section 42(m)(i) of the FOI Act, the Act does not apply to the record.

Right of Appeal

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