Whether the Council was justified in its decision to refuse access to a copy of a complaint made in relation to alleged unauthorised development under section 42(m)(i) of the FOI Act

17 September 2019

Background

On 3 October 2018, the applicant sought access to a copy of a complaint made in relation to alleged unauthorised development at a named location. On 17 December 2018, the Council issued a decision in which it identified one record relevant to the applicant’s request and refused access to that record under section 42(m) on the ground that its release would reveal the identity of the person(s) who provided the information. On 6 January 2019, the applicant sought an internal review of that decision, following which the Council affirmed its original decision under section 42(m)(i). On 23 May 2019, the applicant sought a review by this Office of the Council’s decision.  

I have now completed my review of the Council’s decision. In conducting the review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter. I have also had regard to the content 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 copy of the complaint sought by the applicant under section 42(m)(i) of the FOI Act.

Preliminary Matter

Under section 25(3) the Commissioner is required to take all reasonable precautions in the performance of his functions to prevent the disclosure of exempt information.  As a consequence, the descriptions I can give of the Council's arguments for withholding the record at issue and of my findings in relation to those arguments are necessarily limited in this case.

Analysis and Findings

Section 42(m)(i) provides that the FOI 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 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 record at issue, I am satisfied that its disclosure could reasonably be expected to reveal, or lead to the revelation of the identity of the person(s) who provided the information.  I find, therefore, that the first requirement is met.

Second Requirement

The second requirement is that the provider of information must have provided that information in confidence.

In its submission to this Office, the Council stated that the Planning Department provides an online form for members of the public to register a planning complaint. The form states that the Council will endeavour to maintain as confidential any complaints made to it in confidence and in good faith. The form includes a provision for complainants to sign a “confidentiality agreement” confirming that their identity or any other information relating to them is not disclosed in the investigation of a complaint.

The Council stated that while the complaint in this case was not made through the online form, it is its policy to treat all complaints in respect of planning enforcement in confidence and this policy is clearly indicated on the online complaint form. It argued that given the custom and practice of the Council to date in such matters, it is reasonable to assume that the complainant would have no expectation that his details would be released. The Council also argued that without assurances to confidentiality, the information gathering process in respect of planning enforcement could be compromised, as members of the public would be discouraged from co-operating with the Council in relation to such matters.

In my view, it is not generally appropriate that the details of a complaint of alleged unauthorised development would be treated as confidential or that persons making such complaints could reasonably expect that the nature of the complaint would be treated as confidential.  Indeed, if a planning authority wished to follow up on such a complaint, I fail to see how it could do so fairly without informing the person(s) against whom the allegations were made of the nature of the alleged unauthorised development.  However, I fully accept that complainants would have a general expectation that their identities be treated as confidential.  The withholding of the complainant’s identity should not hamper the planning authority’s ability to investigate the complaint made.

In the circumstances, and in light of my finding that the disclosure of the withheld record could reasonably be expected to lead to the revelation of the identity of the person(s) who provided information to the Council, I accept that the record at issue was given 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, including the control of breach of planning law under the Planning and Development Acts 2000-2018 and the Planning and Development Regulations 2001 to 2019.  Therefore, I am satisfied that the third requirement is met in this case.

Finding

Having found that each of the three requirements are met, I find that section 42(m)(i) of the FOI Act applies and that the Council was justified in refusing to grant access to the record sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council in this case.

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