Whether the Council was justified in refusing access in full and in part to records concerning planning enforcement complaints under sections 15 and 35 of the FOI Act.

26 July 2018

Background

On 15 March 2017 the applicants sought access to records about them held by the Council including records held by the Council's Planning and Enforcement section.  The Council granted access in full to some records and part granted access to other records on the basis of sections 15, 32 and 35 of the FOI Act. Following the applicants' internal review request, the Council granted access in full to two more records and affirmed its decision on the remaining records on the basis of sections 15(1)(i) and 35(1)(a) of the Act. On 19 November 2017, the applicants applied to this Office for a review of the Council's decision.  

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to submissions from the Council and the applicants. I have also had regard to the correspondence between this Office and both the Council and the applicants on the matter, to the contents of the records at issue, and to correspondence between this Office and a potentially affected third party.

Scope of the Review

During the review the applicants referred to records not having been identified by the Council. As such, this review is concerned with whether the Council was justified in its decision to refuse access in full and in part to certain records held by its Planning Enforcement section on the basis of sections 15(1)(a) and 35(1)(a) of the FOI Act. The relevant records to which the Council applied section 35(1)(a) are numbers 1, 2, 3, 7, 8 and 9, all of which were part granted, except for record 8 which was withheld in full.  

The applicants also helpfully confirmed to this Office that they were not seeking a review of the Council's decision on records refused under section 15(1)(i).  

Preliminary Matter

In their submission the applicants queried the accuracy of certain records released by the Council. They also raised an issue of concern about processes and protocols applied by the Council. In relation to accuracy of records, section 52 of the FOI Act provides for an offence introduces for a person convicted of the deliberate altering or destruction of records which are the subject of an FOI request. However, the Commissioner does not have a role in adjudicating on complaints concerning section 52 and I have no evidence that an offence has been committed in relation to alteration of records. 

Concerning processes etc. applied by FOI bodies, reviews carried out by this Office arede novoreviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. I stress that the findings which follow concern the applicants' right to access records under the FOI Act and do not extend to other matters concerning the applicants and the Council.

Analysis and Finding

The Council refused access in part and in full to the identity of two complainants and correspondence under section 35(1)(a).  For the purposes of this decision, I shall refer to them as complainant number one and complainant number two. Records 1, 2 and 7 concern complainant number one and records 3, 8 and 9 concern complainant number two.

Are further records held?

In one of their submissions the applicants refer to records not having been identified by the Council. For example, in response to the Investigator's invitation to clarify which of the numbered records the review covered, they mention no record having been created of a visit to their home. I note the matter of "missing" records was not raised in the internal review request although the Council's initial decision included a schedule which it said covered all the relevant records that it had retrieved. It is also the case that records 4 and 13, containing the planning enforcement officer's reports of site inspection and observations on the construction of a wall, were released to the applicants at internal review stage and do not form part of this review. It appears that the applicants are referring to previous meetings and exchanges with the Council as regards a roads project. Clearly, the applicants are strongly of the view that the Council ought to have created further records.

Section 15(1)(a) of the FOI Act allows a public body to refuse a request on the basis that it has taken all reasonable steps to locate all records within the scope of a request or that the requested records do not exist. In reviewing any such decisions, it is not normally the function of this Office to search for records. Importantly,  this Office has no remit to examine, or make findings on whether or not the Council or individual staff should have created further records, the level of detail in records that were created, the adequacy of the Council's record keeping or how it goes about its business. In this regard, it seems to me from the submissions of the applicants that they may be under the impression that the Commissioner's role in reviews such as this is wider than that of considering the right of access to records held.

In the course of the review, I have examined the two sets of records which the Council scheduled which it states comprise all the records it holds that fall within the scope of the FOI request: 1. Records held by the Planning Enforcement Section; 2. Email correspondence between the applicants and Operations Directorate; 3. Copy of signature of one of the applicants for a copy of By-Laws in 2016. I do not consider that this Office has any basis on which to find that the Council holds further records which it has withheld. If the applicants have identified specific additional records which they believe are held by the Council, it is open to them to consider making a fresh request for access to those. Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps.

Section 42(m)

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 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. This provision was brought to the attention of the applicants and the Council in the course of the review. It seems to me that as it is a provision that places certain information outside of the Act, it should be examined before any other claims for exemption are discussed. The Council has released the substance of the complaints as it appears in the records subject to redaction/withholding of information which would identify the writers or disclose personal information about them or other individuals.

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 information must have been provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First Requirement

Having examined the relevant records, I am satisfied that the disclosure of the information redacted from the records could reasonably be expected to lead to the revelation of the identity of the persons who provided the information to the Council. I find, therefore, that the first requirement is met in respect of the information withheld from records 1, 2 and 7 (complainant one) and records 3, 8 and 9 (complainant two).

Second Requirement

The second requirement is that the provider of information must have provided that information 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. It is also arguable that the circumstances surrounding the receipt of complaints regarding alleged breaches of planning law requires an understanding that the identities of complainants will not be disclosed. The records in this case do not contain a clear statement that the complainants provided the information in confidence. This Office wrote to the complainants in an attempt to ascertain their position. While complainant two responded that she had no difficulty with her identity being disclosed, complainant one did not respond and, apart from an email address, I have no other contact details. The Council maintains its position that the complaints were made and received in confidence and I accept that complainants would have a general expectation that their identities be treated as confidential in the circumstances, I am prepared to accept that complainant one provided information in confidence. 

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 planning and development. Therefore, I am satisfied that the third requirement is met in this case.

Having regard to the findings above, I am satisfied that section 42(m)(i) the FOI Act applies to the identity of complainant one and the other identifying information redacted from records 1, 2 and 7 and that the Council was justified in refusing access to the information contained in these records.

As regards complainant two, clearly neither section 42(m)(i) nor section 35 (information obtained in confidence) can apply given the confirmation received that there is no objection to the release of that complainant's name. Therefore, I find that the refusal to grant access to information on the identity of complainant two is not justified. However, I consider that the personal email addresses, personal phone numbers and postal addresses of individuals in the records together with an individual's personal information in the last sentence of the first email in record 3 are personal information under section 2 of the Act and exempt under section 37(1) of the Act. I find that the public interest in granting access to those parts of the records does not outweigh the public interest in upholding the right of privacy.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision.
 

• I affirm its decision to refuse access to information in records 1, 2 and 7.
• I annul its decision to refuse access to information in records 3, 8 and 9 and direct their release subject to the redaction of the complainant's email, phone number and postal address and personal information of another individual detailed above.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

                                  
Elizabeth Dolan
Senior Investigator