Whether the Council was justified in its decision to refuse access, under sections 35 and 42(m) of the FOI Act, to the identity of the individual(s) who made a complaint concerning hedges/trees on the applicant’s property

11 December 2020

Background

This review has its background in a Hedge Cutting Advisory Notice the applicant and her husband received from the Council on 5 December 2019. They said that when they queried the Notice with the Council, they were informed that the hedge/trees on their property was causing damage to vehicles. On 2 January 2020, they submitted a request to the Council under the FOI Act for details of whose vehicles were damaged and who made the accusations.

In its decision of 10 February 2020, the Council confirmed that it had received a complaint but it refused access to the information sought under section 35 of the Act, which is concerned with the protection of information given in confidence. On 5 March 2020, the applicant and her husband sought an internal review of that decision. In their application for internal review, they said they wanted to know who had sent in a report and when, and who inspected their property and when.

In its internal review decision of 6 April 2020, the Council confirmed that a complaint was received from a member of the public on 27 November 2019 and that a Council technician inspected the area on 2 December 2019 and confirmed that the hedges along the stretch of roadway in question needed to be cut. It refused details of who had made the complaint under sections 35 and 42(m). On 2 October 2020, the applicant sought a review by this Office of the Council’s decision, wherein she argued that she was entitled to know who had made the allegations.

I have decided to bring this review to a close by way of a formal binding decision.  In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.

Scope of Review

The scope of this review is concerned solely with whether the Council was justified in refusing access to the identity of the individual(s) who made a complaint concerning hedges/trees on the applicant’s property under sections 35 and 42(m) of the FOI Act.

Analysis and Findings

As section 42 serves to restrict the applicability of the FOI Act in certain circumstances, I believe it appropriate to consider section 42(m) first, before proceeding to consider section 35, if necessary.

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.

First Requirement

The information sought in this case concerns the identity of the individual(s) who made the complaint to the Council.  It is clear, therefore, that the first condition has been met.

Second Requirement

The second requirement is that the provider of information must have provided that information in confidence.  It is the Council’s position that the information concerning the need to cut the hedges/trees was provided in confidence.

The Council argued that it relies on members of the public for such information to help inform them about such matters and that it is crucial that members of the public who provide such information in confidence can be assured that their identity or information that may identify them will be protected.

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. I accept that without an assurance or understanding that information being provided is provided in confidence, such persons may be reluctant to provide this type of information in the future.

I note that in this case the Council informed the applicant that, following an inspection, hedgerows/trees on her property adjacent to the public road had been identified as being overgrown and advised her of her statutory responsibilities regarding the cutting of same.  However, it did not provide the applicant with any information or records that would disclose the identity of any complainant(s). In the circumstances, I am satisfied that such identifying information was provided in confidence.  I find that the second requirement is met.

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law.  The Council is charged with the enforcement of legislation relating to the cutting of hedgerows / tress adjacent to public roads under the Roads Act 1993.  Therefore, I am satisfied that the third requirement is met in this case.  

Having found that each of the requirements are met, I find that section 42(m)(i) of the FOI Act applies and that the Council was justified in refusing access to the information sought.  In light of this finding it is not necessary for me to consider whether section 35 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 Council to refuse access to the identity of the individual(s) who made a complaint concerning hedges/trees on the applicant’s property under section 42(m)(i) of the FOI Act.

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