Case number: OIC-144470-K7F7W1

Whether the Department was justified in refusing to grant access, under sections 35(1) and 42(m) of the FOI Act, to the name of the person who made a complaint to the Department regarding the spreading of slurry

 

21 March 2024

 

Background

The case concerns a report the Department received that the applicant had been engaged in slurry spreading on 16 October 2023, a date which falls outside of the closed slurry spreading period. The applicant believes this to be false and alleged that the slurry spreading had been carried out on 14 October 2023. 

On 24 October 2023, the applicant submitted a request for the name of the person who made the report.  On 21 November 2023, the Department refused the request under sections 35(1) and 42(m) of the FOI Act. The applicant sought a review of that decision on 22 November 2023, following which the Department affirmed its original decision. On 7 December 2023, the applicant sought a review by this Office of the Department’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out this review, I have had regard to the correspondence between the Department and the applicant as outlined above and to the correspondence between this Office and both the Department on the matter. I have decided to conclude the review by way of a formal, binding decision.

Scope of Review

I note that in his application for review, while the applicant said he wanted to know who made the false report, he also said he wanted a copy of the report from the Department official who carried out the related inspection. As this review cannot include matters that were not captured by the original request, I will not consider whether the applicant has a right of access to any report prepared by the Departmental official who carried out the inspection. If the applicant wants a copy of such a record, he is free to make a fresh request to the Department for same.

Accordingly,  this review is concerned solely with the question of whether the Department was justified in refusing, under sections 35(1) and 42(m) of the Act, the applicant’s request for the name of the person who made the report regarding slurry spreading activities.

Analysis and Findings

The Department relied on sections 35(1) and 42(m) of the FOI Act to refuse access to the identity of the complainant. Having regard to the particular circumstances arising, it seems to me that section 42(m) is most relevant to the question of whether the Department was justified in refusing access to the information sought.

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 –

i. 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, or

ii. any other source of such information provided in confidence to an FOI body, or where such information is otherwise in its possession.

In essence, section 42(m)(i) 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. The section is not subject to a public interest test. In other words, if the section applies, then that is the end of the matter and no right of access exists.

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 given in confidence, while the third is that the information supplied must relate to the enforcement or administration of the law.

First Requirement

As the information sought is the identity of the complainant, I am satisfied that the release of that information would reveal the identity of the supplier of the information concerning alleged slurry spreading and that the first condition is therefore met.

Second Requirement

The second requirement is that information supplied must have been given in confidence. It is arguable that if people providing information to the Department in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. The Department said reports such as the one at issue are made in confidence by members of the public and it is on the basis of this guarantee of confidentiality that reports of this nature are made to it. It added that in line with the guidance that issued as part of the 5-point action plan which was launched as a measure to deal with Nitrates Regulation infringements during the closed spreading period, the complainant was advised that their personal information and the information that they provide would be treated confidentially. It said it is imperative that these reports continue to be provided to ensure that any alleged infringements of the Nitrates Regulations can be investigated.

The essence of the applicant’s argument is that the report in this case was false and malicious and that the complainant’s identity should not therefore be treated as confidential. We take the view 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. Thus, 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.

Having regard to the Department's submissions on the matter, I accept that the information supplied was given in confidence in this case and I find that the second requirement has been met. 

Third Requirement

The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law. The Department said the information provided was in relation to an alleged breach of the Nitrates Regulations. The legal basis for enforcement of these regulations in under S.I. No. 113/2022 - European Union (Good Agricultural Practice for Protection of Waters) Regulations 2022. The purpose of these Regulations is to give effect to Ireland’s Nitrates Action Programme pursuant to Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from an agricultural source.  I am satisfied that the third requirement is met in this case.

Conclusion

In conclusion, therefore, having found that each of the three requirements are met, I find that the Department was justified in refusing access to the information sought under section 42(m) of the FOI Act. Having found section 42(m) to apply, it is not necessary for me to consider whether section 35(1) of the Act also applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse, under section 42(m) of the Act, the applicant’s request for the name of the person who made a complaint to the Department in relation to slurry spreading.

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