Mr X and Wexford County Council

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 21 June 2021
• Case Outcome: The Senior Investigator affirmed the decision of the Council.
• Court: Information Commission
• Respondent: Wexford County Council
• Record Number: OIC-106023-H7C5X0

Whether the Council was justified in refusing, under section 42(m) of the Act, the applicant’s request for the name(s) of the person(s) who made a complaint to the Council in connection with his property and the details of the complaint made

21 June 2021

Background

On 19 February 2020, a Council official visited the applicant’s property on foot of a complaint the Council had received about alleged unauthorised development at the property. The applicant wrote to the Council on 23 February 2020 seeking the name(s) of the person(s) who had made the complaint. In its response of 6 March 2020, the Council said it does not release the details of a complainant on an enforcement file.

The applicant then contacted the Council and asked or details of the complaint made. On 11 March 2020, the Council provided the details of the complaint. It also said that a complainant’s details provided in confidence cannot be divulged, pursuant to section 42(m) of the FOI Act. Following further correspondence between the parties, including the applicant’s solicitor, the Council informed the applicant that it was satisfied there was no basis for the complaint and that its enforcement file was closed.

On 16 September 2020, the applicant submitted an FOI request to the Council for the name(s) of the person(s) who made the complaint and the details of the complaint made, both written and verbal. On 13 October 2020, the Council refused the request under section 35(1) of the FOI Act. The applicant sought a review of that decision on 30 October 2020, following which the Council affirmed its decision to refuse the request. On 6 April 2021, the applicant sought a review by this Office of the Council’s decision.

During the course of the review, the Council indicated that it also wished to rely on section 42(m) of the Act in support of its refusal of the request. This Office’s investigating officer informed the applicant of the Council’s reliance on that provision and of her view that the Council was justified in relying on that provision to refuse access to the details of the complainant(s). She invited the applicant to make a submission on the matter and he did so.

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 Council and the applicant as outlined above and to the correspondence between this Office and both the Council and the applicant on the matter. I have also had regard to the contents of the records held by the Council that contain the information sought. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant’s request for the name(s) of the person(s) who made a complaint to the Council in connection with his property and the details of the complaint made, both written and verbal, under various provisions of the FOI Act 2014.

Preliminary Matters

Before I address the substantive issues arising in this case, I would like to make a number of relevant preliminary comments. First, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. This means that in this case, I must consider whether the Council was justified in refusing access to the records containing the information sought by the applicant.

Second, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act...