Case number: 98103
Case 98103. Information from anonymous informant - whether information given in confidence - sections 23(1)(b) and 26(1)(a) - whether public interest better served by release.
The requester sought access to an anonymous letter which alleged that he was working while in receipt of benefit from the Department of Social, Family and Community Affairs. The Department refused access under section 26(1)(a) on the basis that this information was obtained in confidence, on the understanding that it would be treated as confidential, that the release would prejudice the giving of further similar information in the future and that it was important to the Department to continue to receive such information. The Department had put the allegations to the requester and had found that the allegations were unfounded. The Department also argued that the handwriting and the contents of the letter could lead to the identification of the informant and, accordingly, that the record was exempt under section 23(1)(b).
The Commissioner affirmed the decision of the Department not to release the information under sections 23(1)(b) and 26(1)(a). In relation to section 26(1)(a) he accepted that the informant did not intend that anything which might lead to his identification by the requester would be revealed. He accepted that receipt of information of this kind was important to the Department and that its future receipt would be prejudiced if the identity of informants was revealed. He identified three public interest factors which might require release of the identity of an informer - the public interest in the requester exercising his rights under the Act, the public interest in the fair and proper treatment of social welfare claimants against whom allegations of fraud are made and the public interest in discouraging false and malicious allegations. The Commissioner decided that only the first factor was relevant in this case and he decided that this was insufficient to outweigh the public interest in the Department being able to effectively detect and eliminate abuses of the social welfare system.
On 12 July 1998, Mr AAY made a request to the Department of Social, Family and Community Affairs, under the Freedom of Information (FOI) Act, for access to an anonymous letter received by the Department which stated that he had been working while claiming benefit. On 13 August 1998, the Department decided to refuse to grant access under section 26(1)(a) of the Act. The Department did not explain the reasons for the application of this exemption nor did it identify particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. On the same day, Mr AAY applied for an internal review of this decision. On 1 September 1998, a decision was made at internal review to refuse access under section 26(1)(a) and section 23(1)(b). In a letter which I received on 2 October, Mr AAY applied to my Office for a review of this decision.
Having considered the matter, I decided to review the decision of the Department and invited submissions from the relevant parties.
In reviewing the decision, I considered the record in question and the arguments made by Mr AAY and the Department and, in particular, its submissions to me dated 20 October 1998 and 2 December 1998. I also examined the file relating to Mr AAY's claim in order to see the result of the investigation carried out on foot of the allegations.
Mr AAY did not make a submission but his application for review contained his arguments in favour of release. He argued that the person who wrote the letter was not a "general informer" and stated that he wants to be "on guard" against possible future actions by the letter writer.
The Department's submissions explained how anonymous allegations are used in the investigation of possible abuses of the Social Welfare system. The Department stated that social welfare investigators are under instruction never to show such letters to the claimant involved and that such letters are not put before the deciding officer who determines entitlement. It claimed that it was its policy not to reveal the fact that it had received a report on someone (whether anonymous or otherwise). It said that this policy was well known and that it believed that those who forward such reports do so on the understanding that the reports will be so treated. It argued that it was essential for control of expenditure that such information continue to be received. The Department considers that release of this report would prejudice the giving of further similar reports which would lead to a lower level of detection of abuses of the system. It suggested that the following public interest factors tended towards the general refusal of access to such letters
It also stated that the handwriting and content of the letter could identify the author and claimed that the information was exempt under section 23(1)(b) of the FOI Act.
The Department expanded on some of these points in its submission of 2 December. It pointed to my decision in case number 98032 - Mr AAK and the Department of Agriculture and Food and it said that the reasoning in that decision insofar as it related to anonymous allegations applied with equal force to Mr AAY's request. It claimed that the reasoning in case number 98032 supported its decision in this case.
As evidence of the importance of the continued receipt of such reports, the Department said that investigations of abuses of schemes may be triggered by the receipt of these reports. It claimed that if the flow of information is cut off, the Department's ability to detect such abuses would be impaired. Failure to detect and to eliminate such abuses would lead to increased social welfare expenditure. The Department estimated that it receives in the region of 5,000 such reports per annum and that over one quarter of these are substantiated. It further estimated that savings in social welfare expenditure in the order of €500,000 per annum are involved in these cases.
The Department indicated that writers of anonymous letters often include details about themselves which can point to their identity but which can also assist the Department in assessing the reliability of their information. It also had regard to the possibility in this case that the author of the letter worded it in such a way that, if revealed to the requester, it would point to "an innocent third party as having written it."
During the investigation of the allegation that Mr AAY was working while in receipt of pre-retirement allowance, Mr AAY was informed generally of the contents of the letter. No evidence was found to substantiate the allegation contained in the letter. Mr AAY has made it clear that his interest in seeking the record is his desire to identify the informant.
The main exemption on which the Department has sought to rely is section 26(1)(a). This section provides that
"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if
(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, "
As the Department indicated in its submission of 2 December, the question of releasing details supplied by an anonymous informant was dealt with at some length in case number 9832 - Mr AAK and the Department of Agriculture and Food. I accept that the reasoning in that case is also relevant to the present case. For the sake of completeness, and for the guidance of the requester, I have repeated much of that reasoning below.
For section 26(1)(a) to apply, it is necessary for the Department to show four things, viz.
The letter in question in Mr AAY's case contains two distinct elements of information viz. (i) information relating to the identity of the informant and (ii) information consisting of the actual contents of the allegation. For the purpose of applying section 26(1)(a), I have considered these two elements separately.
(i) Information relating to the identity of the informant
Where information comes from an anonymous source, it is reasonable to assume that information given about the informant and which might identify him is given in confidence and on the basis that it will be kept confidential. This situation differs little from that of an allegation from a named informant who explicitly requests confidentiality. Therefore it is important to consider if the information contained in the allegation could lead to the identification of the letter writer.
Having examined the record in this case, I accept that the information contained in it could lead to the identification of the source of the information. I accept, therefore, that the first two requirements of section 26(1)(a) are met in this case. I also accept that, if information about an informant which might identify that informant is disclosed, this is likely to prejudice the giving of similar information about an informant in the future. The final requirement of section 26(1)(a) is that it be of importance to the public body to receive such information (i.e. information aboutthe informant) in the future. In deciding whether this requirement of the section is met, I have considered two issues. The first is whether obtaining information from informants is important. The Department maintains that it is. It says that investigations of abuses of schemes may be triggered by the receipt of such reports. It claims, and I accept this to be the case, that if the flow of information is cut off, the Department's ability to detect such abuses would be impaired. Failure to detect and to eliminate such abuses would lead to increased social welfare expenditure. As indicated above, the Department estimates that it receives 5,000 such reports per annum and that over one quarter of these are substantiated. It estimates savings in social welfare expenditure in the order of €500,000 are involved in these cases. Therefore, I accept that it is of importance to the Department to continue to receive information about alleged abuses.
The second issue which I have considered is whether it is important to the Department that it knows the identity of informants or is given some details about the informants as distinct from the details of their allegations. The Department has indicated that the elements which could lead to the identification of the person who wrote the letter also allow it to determine the likely quality of the information. I accept that this is so and that, therefore, it is of importance to the Department that informants continue to give such details about themselves as may assist the Department in assessing the quality of the information supplied.
Therefore, I accept that the requirements of section 26(1)(a) have been met in relation to that part of this record which relates to information about the informant.
(ii) Contents of the allegations in the record
The second matter which requires to be considered in the light of Section 26(1)(a) is the actual contents of the allegations in the record. Once again the four requirements of section 26(1)(a) mentioned earlier need to be considered. One of these requirements is that the information must be given on the basis that it be kept confidential. The Department has made the case that, in contrast to the position in case number 98032, disclosure of any of the details of the allegation in Mr AAY's case would be likely to reveal the identity of the informant. It argues that this supports the view that these details are given on the understanding that they will be kept confidential. Having examined the record in this case, I accept that release of any part of the record could identify the informant. Therefore I have decided that section 26(1)(a) applies to the whole of the contents of the record in this case.
However, the requirements of section 26(3) must also be considered. section 26(3) provides that "Subject to section 29, subsection (1) (a)shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."
Section 26(3) requires the public body to consider whether the public interest would, on balance, be better served by granting rather than by refusing to grant the request. The Department does not appear to have properly considered this at internal review stage, merely repeating the arguments that it is important that future similar information should continue to be received and that the disclosure of this information would prejudice the future receipt of information. I accept that there is a significant public interest in the Department being able to effectively detect and eliminate abuses of the social welfare system. I also accept, as I have said, that it is of importance to the Department to continue to receive information of this kind.
On the other hand, there are public interest factors in favour of release. The first is the public interest in Mr AAY, as an individual, exercising his rights under the FOI Act. This is a not inconsiderable factor in favour of release but, in my view, it is not sufficient, of itself, to persuade me that the public interest would be better served by release in this case. A second possible public interest factor in favour of release is the need to ensure proper and fair treatment of social welfare claimants against whom allegations of fraudulent claims are made. In the present case, the allegation was investigated and found to be without substance. During the investigation, Mr AAY was informed generally of the allegation. I consider, in the circumstances, that Mr AAY need not be given details which might identify the informant. Different considerations would arise, for example, if the Department had withdrawn Mr AAY's pre-retirement allowance on foot of the allegations. In those circumstances, I would be obliged to examine this public interest factor in more detail. Among my concerns would be the question of whether the refusal of access to the record would have militated against Mr AAY's ability to refute the allegation. The third possible public interest factor is the public interest in discouraging the making of allegations which are false, malicious and designed only to cause distress to the party involved without providing any assistance to the public body. Indeed, it is questionable whether section 26 would apply to such allegations since it would not be of importance to the body that further similar information should continue to be given to the body. In any event, I would not be justified, on the evidence before me, in accepting that the informant knew the allegations were false. I find, therefore, that this factor does not exist in the present case.
For the reasons given above, I find that the public interest would not be better served by release of the record in this case.
The Department also sought to rely on the exemption in section 23(1)(b). This provides as follows 23.(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to
(a) prejudice or impair.....
(b) reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence"
The Department argued that the handwriting and the contents of the letter would be likely to reveal the identity of the author. It will be clear from what I have said in relation to section 26(1)(a) that I accept this to be the case. Therefore, I find that the exemption in section 23(1)(b) also applies.
Having considered the decision of the Department, both initially and on internal review, I have decided to affirm the decision of the Department not to grant access to the record concerned.