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Case 020272. Request for copy of a letter of complaint to the Council regarding the requester's property - whether release could reasonably be expected to 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 - section 23(1)(b)

Case Summary

Facts

The requester sought access to a letter of complaint to the Council regarding her property. The Council refused the request on the grounds that, inter alia, section 23(1)(b) applied to the letter.

Decision

The Commissioner's authorised officer commented that it was clear, from his examination of the record, that its author expected that his or her identity would not be disclosed. The Council said that, in order to ensure that such complaints continue to be made, which sometimes alert it to serious breaches of the planning law, they should be received on a confidential basis. Its position was that confidentiality should apply even where the particular complaint does not result in the detection of a breach of planning law. The Council contended that any breaching of confidence on its part would have the effect of deterring other potential complainants from passing on valuable information. The authorised officer accepted, therefore, that the complaint was made to the Council in confidence and was accepted in confidence.

The authorised officer also accepted that a copy or transcript of the letter, with the author's name and address deleted, would reveal the author's identity. He also accepted that the information in the letter related to the administration of the civil law - in this case, the planning law. He found that section 23(1)(b) applied to the record in question.

Date of Decision: 23.07.2002

Our Reference: 020272

23.07.2002

Ms X

Dear Ms X,

I refer to your application under the Freedom of Information (FOI) Act for a review of the decision of Fingal County Council (the Council) on your request for a copy of a letter of complaint to the Council regarding your property. You made your original FOI request to the Council on 11 February 2002. I have been authorised by the Information Commissioner to conduct this review on his behalf.

Background

In conducting this review, I have had regard to the Council's decisions on the matter, to your submission to this Office of 16 May 2002, to the Council's submission of 13 June 2002 and to the provisions of the FOI Act generally. I have also examined the relevant record.

Scope of Review

My review is concerned solely with the question of whether you are entitled to access, under the FOI Act, to the record you requested.

Findings

The Council relied on a number of separate provisions of the FOI Act in refusing you access to the record in question, namely, section 21(1)(b), section 23(1)(a)(ii), section 23 (1)(b) and section 26. Having considered the matter carefully, I consider that section 23(1)(b) is applicable in this case. This section 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

(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"

I have examined the record in question and it is clear to me that its author expected that his/her identity would not be disclosed. Confidentiality was requested at the time of making the complaint. The Council's position, as stated in its submission to this Office, is that it is anxious that members of the public should continue to make complaints in relation to alleged unauthorised developments; such complaints sometimes alert the Council to serious breaches of the planning law. In order to ensure such complaints continue to be made, the Council accepts that they should be received on a confidential basis. I understand the Council's position is that confidentiality should apply even where the particular complaint does not result in the detection of a breach of planning law. The Council's view is that any breaching of confidence on its part would have the effect of deterring other potential complainants from passing on valuable information. I accept, therefore, that the complaint was made to the Council in confidence and accepted by the Council in confidence.

I also accept that a copy or transcript of the letter, with the name and address of the author deleted would, in its detail, reveal the identity of the author. In addition, I accept that the information given to the Council in the letter relates to the administration of the civil law (planning law, in this case). In my opinion, therefore, all of the elements necessary for the operation of section 23(1)(b) apply to the record in question and, accordingly, I find that the record is exempt from release by reference to section 23(1)(b) of the FOI Act.

Given this finding that the record is exempt from release by reference to section 23(1)(b) of the FOI Act, it is not necessary to consider the relevance of the other exemptions relied upon by the Council.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of Fingal County Council to refuse access to the record requested.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Fintan Butler
Senior Investigator