Case number: OIC-53511-F3Q1V3 (190252)
28 August 2019
On 20 March 2019, the applicant made an FOI request for information relating to a complaint about an alleged unauthorised development at their property. By letter dated 28 March 2019, the Council granted access to some information and refused access to the remaining information under section 35(1)(a) of the FOI Act. On 4 April 2019, the applicant applied for an internal review. The Council issued an internal review decision by letter dated 29 April 2019, in which it upheld its original decision. On 27 May 2019 the applicant applied to this Office for a review of the Council's decision.
In conducting my review, I have had regard to the correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Council for the purposes of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether the Council was justified in refusing access to the withheld information under section 35(1)(a) of the FOI Act or otherwise.
Section 42 – Restriction of the FOI Act
Having reviewed the withheld information, I consider it appropriate to consider section 42(m) of the FOI Act first, as this provision restricts the applicability of the FOI Act in certain circumstances.
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, section 42(m)(i) provides for the protection of the identity of people who have given information in confidence in relation to the enforcement or administration of the law. The Commissioner takes the view that it is aimed at ensuring that people are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the law.
For section 42(m)(i) to apply, three 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 given in confidence, while the third is that the information must relate to the enforcement or administration of the law.
The withheld information comprises the name and address of a person who complained to the Council about an alleged unauthorised development. I consider that releasing this information could reasonably be expected to reveal, directly or indirectly, the identity of the supplier of the information concerned. I am satisfied that the first requirement is met.
The Council says that the information was given in confidence and on the understanding that it would be treated as confidential. It says that releasing it may hinder the Council from obtaining similar information in future and it is necessary to continue to receive such information to carry out its duties. I note that the Council’s enforcement complaint form states that the details of people who make complaints will be treated as confidential and it is the Council’s policy not to release them, although the Council cannot give absolute guarantees.
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 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 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.
I note in this case that the Council issued a warning letter which described the nature of the alleged unauthorised development. However, it did not provide the applicant with any information or records that would disclose the identity of the complainant(s). I am satisfied that such identifying information was provided in confidence and that the second requirement is met.
The Council is charged with the enforcement of legislation relating to planning and development. The information was supplied in relation to the enforcement of planning law. I am satisfied that the third requirement is met.
Accordingly, I find that the Council was justified in refusing access to the withheld information, under section 42(m)(i) of the FOI Act. In view of this finding, I am not required to consider the exemption claimed under section 35 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I affirm the Council’s decision, under section 42(m)(i) of the FOI Act.
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.