Whether the Council was justified in refusing access, under various provisions of the FOI Act, to records of complaints made against the applicant 

13 May 2022

Background

In a request dated 6 December 2021, the applicant sought access to complaints made against him on two specified dates and attachments -�with name and details of complainant and any details which could identify the complainant removed or redacted-�.  In a decision dated 14 December 2021, the Council refused access to two records it identified as coming within the scope of the request, under section 35(1)(a) of the FOI Act.  The applicant sought an internal review of that decision, following which the Council affirmed its refusal of the request. On 13 January 2022, the applicant applied to this Office for a review of the Council's decision.

During the course of the review, the Council also cited sections 37(1) and 42(m)(i) of the Act as grounds for refusing the request. The Investigating Officer informed the applicant of her view that section 42(m)(i) applied to the records and invited the applicant to make further submissions on the matter. The applicant provided further information in response.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by the FOI body in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to the records sought under various sections of the FOI Act.

Analysis and Findings

Having regard to the nature of the request and to the contents of the records at issue, I have decided to consider the applicability of section 42(m)(i) in the first instance. I am satisfied that the submissions made by the Council are also relevant to section 42(m)(i). 

Section 42(m)(i)
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 information. The second is that the information provided must have been provided in confidence, while the third is that the information provided must relate to the enforcement or administration of the law.

First Requirement
The applicant's request was for details of the complaints made against him with any details which could identify the complainant removed or redacted. In his correspondence with this Office, he said he was aware of who had made the complaints and was interested in obtaining the details of the actual complaints made. Under section 25(3) of the FOI Act, I must take all reasonable precautions to prevent the disclosure exempt information in the course of a review. Accordingly, while I cannot give full reasons for doing so, I find that the release of any part of the records could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. I am satisfied that the first condition is met.

Second Requirement
The second requirement is that information must have been provided in confidence. The records at issue concern complaints of alleged anti-social behaviour. The Council indicated that its policy is to treat the identity of such complainants as confidential. This Office accepts, as a general proposition, that the purpose of section 42(m)(i) is to protect the flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law and that the disclosure of the identities of complainants could reasonably be expected to have a detrimental effect on other people giving such information to those bodies in the future. Given my finding that the release of any part of the records could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information, I find that the information was provided in confidence in this case.

I note that the applicant argued that the complaints were made maliciously in this case. He argued that he has a right to see what is on record about him to ensure that the information is correct. While I make no comment on the applicant's claim that the complaints were made maliciously, it is important to note that section 42(m)(i) may apply where information was given in confidence, but is subsequently found to be mistaken or unfounded. We give significant weight to safeguarding the flow of information to FOI bodies. We accept 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. In many situations the FOI body acts on the information provided in good faith. We take the view that when the situation of the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken is considered, the difficulty for the FOI body in handling such information in any other manner becomes apparent. I am satisfied that the second condition is met in this case.

Third Requirement
The third requirement is that the information provided relates to the enforcement or administration of the law. The Council has a responsibility in relation to dealing with anti-social behaviour under certain housing legislation, including the Housing (Miscellaneous Provisions) Act 2009.  As the records at issue concern complaints of alleged anti-social behaviour, I am satisfied that the third requirement is met in this case.

Conclusion

Having found that each of the requirements for section 42(m)(i) are met, I find that the Council was justified in refusing access to the records sought under that section. Having found section 42(m)(i) to apply, I do not need to consider the applicability of the other exemptions claimed by the Council.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision to refuse, under section 42(m)(i) of the Act, the applicant's request for access to complaints made against him on two specified dates.

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