Whether the Council was justified in its decision to refuse access to further records relating to a complaint about waste disposal under section 15(1)(a) of the FOI Act and to refuse access to the identity of the individual who made the complaint about the applicant under section 42 (m)(i) of the FOI Act. 

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

On 19 April 2017, the applicant submitted a request to the Council for all records relating to a statutory notice she received about disposal of her household waste. On 25 May 2017 the Council provided the applicant with details of a complaint received that gave rise to the issuing of the statutory notice. The applicant sought an internal review of that decision on 6 June 2017 as the Council had not provided details of the actual records held or of the exemption on which relied to refuse access to such records
On 16 June 2017, the Council decided to release a number of records with the redaction of the identity of the complainant under section 35 of the Act. On 31 July, the applicant sought a review by this Office of the Council's decision.
During the course of this review, subsequent to further searches, two further records were released to the applicant by the Council. While some information was redacted from these records, this information is unrelated to the applicant or her FOI request and as such, it falls outside the scope of this review. 
In an email dated 11 October 2017, Ms Hannon of this Office provided the applicant with details of the searches undertaken by the Council in an effort to locate further relevant records and informed the applicant of her view that the Council was justified in deciding no further records exist. Ms Hannon also informed the applicant of her view that the Council was justified in refusing to reveal the identity of the complainant under section 42 (m)(i) of the FOI Act.  
I have decided to bring this case to a close by way of a formal, binding decision. In reviewing this case I have had regard to correspondence between the applicant and the Council and to the correspondence between this Office and both the applicant and the Council on the matter. I have also had regard to the content of the records provided to this Office by the Council for the purposes of this review and the provisions of the FOI Act.  

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to further relevant records relating to the statutory notice she received under section 15(1)(a) on the ground that no such records exist and to refuse access to information that would reveal the identity of the person who made the complaint of alleged illegal dumping.

Analysis and Findings

Section 15(1)(a)- Adequacy of Search
The applicant believes that further records exist in relation to her request both generally and specifically CCTV footage, contemporaneous notes made at the time the complaint was made and a record of the complainant-™s wish to remain confidential and his/her stated reasons. However, it is the position of the Council that no further records exist. 
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.  The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. 
As I have outlined above, Ms Hannon of this Office provided the applicant with details of the Council-™s account of the searches that were undertaken for the records. While I do not propose to repeat those details in full, I can confirm that I have had regard to them for the purposes of this decision.
In summary, the Council said that when a complaint is received details of the complaint and warden investigation are logged on its Environment Complaints Database. The Council stated in the present case that the complaint was given to the community warden by another member of staff who had received a call from the complainant. The Council stated that the Environmental Complaints Database was searched for the complaint record and a copy was included in the Schedule of Records. It said documents of hard copy file were cross matched with the complaints database to ensure no missing/ misfiled documents. The Council stated that all relevant individuals were consulted and their records searched. It said all relevant staff were again contacted following the application for review to the OIC and two further records were found and subsequently sent to the applicant.
Given the information provided by the Council relating to the searches undertaken and the absence of evidence to suggest that further relevant records should exist, I consider that the Council has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 42 (m)(i)- Restricted Records
The Council relied on section 35(1)(a) of the FOI Act to refuse access to information that would reveal the identity of the complainant. That section is concerned with the protection of information given to a public body in confidence. As only the identity of the complainant is at issue in this case, it is my view that section 42(m)(i) of the Act is the more appropriate section to be considered. Although it had not originally been invoked by the Council, it acts to restrict the applicability of the FOI Act in certain circumstances and I therefore believe it appropriate to consider this provision first, before proceeding to consider section 35, if necessary.
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. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies 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. 
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 the 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 information redacted from the records of the complaint in this case comprises the name and contact details of a person who made a complaint to the Council, the release of which, in my view, could reasonably be expected to lead to the revelation of the identity of that person. I am satisfied, therefore, that the first condition has been met. 

Second Requirement

The second requirement for section 42(m)(i) to apply is that the provider of information must have provided that information in confidence. The applicant argued that there was nothing in the records released to indicate that the complainant sought to have his/her identity kept confidential. She referred to a statement on the Council-™s website that, in her view, places the onus on the provider of information to specify that they wish the information to be treated as confidential. However, the fact that a provider of information has not specified that certain information should be treated as confidential does not, of itself, mean that it cannot be treated by the Council as confidential. 
In its submission to this Office, the Council stated that it is its policy that all complaints are confidential unless the complainant specifically states otherwise. It is arguable that if people providing information to the Council in alleged littering cases such as the present case 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. 
In a telephone conversation with Ms Hannon of this Office, the applicant stated she believed that the complainant submitted the complaint to the Council with ill intent. While the applicant provided no evidence to support her contention that the complaint was malicious, 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 prejudice the flow of information from the public 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 is charged with the enforcement of legislation relating to the Waste Management Act 1996 and has powers of enforcement under the Local Government Act 2001. Therefore, I am satisfied that the third requirement is met in this case.
Having found that each of the three requirements are met, I find that section 42(m)(i) the FOI Act applies and that the Council was justified in refusing to release information that would reveal the identity of the complainant. 
In light of this finding, it is not necessary for me to consider whether section 35(1)(a) applies.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access to further relevant records under section 15 (1)(a) and to refuse access to the identity of the complainant under section 42 (m)(i) of the FOI Act.  

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