Case number: OIC-107811-Z2G8X6
In a request dated 23 November 2020, the applicants sought access to the name of the party who reported their alleged breach of environmental legislation (the complainant). In a decision dated 15 December 2020, the Council released the relevant entry in its Environmental Complaints register (the register), with the complainant name redacted under section 37(1) (personal information). On 1 January 2021, the applicants sought an internal review. On 27 January 2021, the Council affirmed its decision on the request. On 30 April 2021, the applicants sought a review by this Office of the Council’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Council and the applicants. I have also had regard to the contents of two records relevant to the request and to the provisions of the FOI Act.
The review is confined to the sole issue of whether the Council’s decision on the applicants’ request was justified under the provisions of the FOI Act.
The Council says that the name redacted from the register is that of a Council staff member who received an email from the complainant alleging the applicants’ breach of environmental legislation, and whose name was inserted into the register in error. I am satisfied from the records copied to this Office that this is a correct representation of events. This Office’s Investigator told the applicants that she felt the name redacted from the register is not covered by their request because it is not the actual complainant’s. No response has been received from the applicants. Having regard to the foregoing, I am satisfied that the name redacted from the register is not covered by the applicants’ FOI request. In the circumstances, I have no jurisdiction to consider this name further.
The Council says that the complainant’s email was not considered for release because it was not attached to the register. However, I am satisfied that I am entitled to consider the part of this email covered by the request i.e. the complainant’s name.
The Council relies on various provisions of the FOI Act in relation to the complainant’s name, including section 42(m)(i) (identity of a person providing confidential information regarding the enforcement of the law). As section 42 serves to restrict the applicability of the FOI Act in certain circumstances, I believe it appropriate to consider section 42(m)(i) first, before proceeding to consider the other provisions (if necessary). No comments have been received from the applicant in relation to the Council’s reliance on this provision of the FOI Act.
Section 42(m)(i) - identity of a person providing confidential information regarding the enforcement of the law
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 the information. The second is that the information must have been provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.
The information at issue discloses the identity of the individual who made the complaint to the Council. I am satisfied that the first condition is met.
The second requirement is that the provider of information must have provided that information in confidence. The Council says that its practice is to treat environmental complaints in confidence. I accept that the complainant provided the information to the Council on the basis of this practice of confidentiality. The Council also says that disclosing the complainant’s name could prejudice the flow of information from the public, and that it is important not to compromise its relationship with the public because their complaints are necessary to the performance of its functions.
I accept that members of the public would be reluctant to make complaints about environmental matters in future, without an assurance or understanding that the information is provided in confidence. I also accept that the Council’s information gathering process in this regard would be compromised if members of the public were reluctant to make such complaints. I am satisfied that the identifying information (i.e. the complainant’s name) was provided in confidence. I therefore find that the second requirement is met.
The third requirement is that the information provided relates to the enforcement or administration of the law. The Council is responsible for enforcement or administration of the Waste Management Act 1996 and 2013. I am satisfied that the third requirement is met.
Having found that each of the requirements are met, I find that section 42(m)(i) of the FOI Act applies to the complainant’s name. In light of this finding it is not necessary for me to consider the other provisions of the Act also relied on by the Council.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access to the complainant’s identity 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.