Whether the Council was justified in refusing access to a copy of a compliant of an unauthorised development at the applicant’s property, under section 42(m)(i) of the FOI Act

26 March 2021

Background

In a request dated 8 December 2020, the applicant sought access to a specified planning file held by the Council following receipt of a planning enforcement notice. On 13 January 2021, the Council decided to part-grant the request. It granted access to some records but refused others under sections 15(1)(i) and 42(m)(i) of the FOI Act. The applicant sought an internal review of that decision. She added that she was willing to accept a copy of the originating complaint with names redacted. On 1 February 2021, the Council affirmed its original decision to refuse access to a number of the records on the ground that their disclosure could reasonably be expected to reveal the identity of the person(s) who provided that information. On 12 February 2021, the applicant sought a review by this Office of the Council’s decision. She said she wanted to see the originating complaints that led to a warning letter being sent to her and that she did not require access to names.

I have now completed my review in this case. In carrying out my review, I have had regard to the correspondence between the Council and the applicant, and to communications between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system in the schedule of records prepared by the Council when processing the request.

Scope of Review

Section 15(1)(i) provides for the refusal of a request where the records sought were already released and are available to the requester. As the applicant has not suggested that she does not have access to the records refused under section 15(1)(i), I do not propose to consider those records in this review. Accordingly, the review is concerned solely with whether the Council was justified in refusing access to records 4 to 7, 10, and 14 to 16 and in redacting certain information from records 11 and 13, under section 42(m) of the FOI Act.

Analysis and Findings

Section 42(m)(i)

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.

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 information. The second is that the information supplied 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

As I am required, under section 25(3) of the Act, to take all reasonable precautions to prevent the disclosure of exempt information during the course of a review, the extent to which I can give and explanation of the records at issue is quite limited. I can say, however, that I am satisfied, given their contents, that the release of the records at issue could reasonably be expected to reveal or lead to the revelation of the person(s) who provided information to the Council.

I note that the applicant suggested that she would be prepared to accept the originating complaint with the names of the complainant(s) redacted. I am satisfied that the release of the originating compliant, as set out in record 16, with the name(s) of the complainant(s) redacted could reasonably be expected to reveal or lead to the revelation of the complainant(s). I find, therefore, that the first requirement is met.

Second Requirement

The second requirement is that the information supplied was provided 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.

In its submission to this Office, the Council stated that the successful implementation of the planning legislation was reliant on the guarantee that confidentiality is respected. Essentially, the Council said it should support and, if necessary, protect any member of the public willing to assist in this area.

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.

As I have already found that the release of the records at issue could reasonably be expected to reveal or lead to the revelation of the complainant(s), I am satisfied that the information at issue was provided in confidence in this case.

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law. The information provided in this case was in relation to a complaint of alleged unauthorised development. 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 Act 2000 (as amended) and the Planning and Development Regulations 2001 to 2020. 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 access to the information sought.

For the benefit of the complainant, I should add that I note her concern that she cannot adequately defend her position in relation to the warning letter if she doesn’t know what the complaint was. It seems to me that the Council provided the applicant with details of the issue in its warning letter of 7 December 2020, namely alleged unauthorised development, consisting of the construction of an extension to the rear of her property which may be in excess of certain specified planning requirements and without the benefit of a valid planning permission.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to withhold certain information relating to a complaint of alleged unauthorised development at the applicant’s property under section 42(m)(i) of the 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