Whether the Council was justified in refusing access to correspondence between it and a Councillor

22 June 2022
 

Background

The applicant's FOI request of 17 December 2021 sought access to four categories of records: (1) an audit report; (2) correspondence between the Council and a particular Councillor in relation to that audit; (3) -�-� any other correspondence between [the Council and the Councillor] from June 2021 -� present.-�; and (4) minutes of Audit Committee Meetings from June 2021.

The Council's decision of 8 February 2022 provided the applicant with copies of the audit report and three minutes relevant to (4). It referred also to draft minutes, which it said would be available for issue once approved. It said that because the audit report did not refer to any individual Councillor, no correspondence was issued to the named Councillor -�directly arising from the report.-� It went on to say that, as the Councillor was -�now a private citizen-�, it understood that -�details of any engagement with [the Councillor] are protected by GDPR-�. The decision did not rely on any refusal provisions of the FOI Act.

On 9 February 2022, the applicant sought an internal review of the Council's decision on part 3, which he said had not been addressed at all. Amongst other matters, he referred to the Council's explanation that no correspondence had issued to the Councillor in relation to the audit, and said that part 3 sought -�any other correspondence-� i.e. correspondence not strictly related to the audit report. He also noted the Council's reference to GDPR and said that it had not relied on any specific FOI exemption, such as that concerning personal information, etc.

The Council's internal review decision of 17 February 2022 affirmed its decision, saying again that the Councillor was now a private citizen and referring again to GDPR. It did not rely on any specific exemptions in the FOI Act. On 25 February 2022, the applicant applied to this Office for a review of the Council's decision on part 3.

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, to correspondence between this Office, the Council and the applicant, and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Council's purported decision on part 3 of the applicant's request was justified under the provisions of the FOI Act.

Preliminary matters

It is relevant to set out the provisions of sections 13(2)(d) and 21(5)(c) of the FOI Act. Further to these provisions, where an FOI body decides to refuse to grant a request, the notification of the decision shall specify:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

Section 23 of the FOI Act provides that where the Commissioner considers that the statement of the reasons for an FOI body's decision is not adequate, he shall direct the head of the body to furnish both to the requester concerned and to him a written statement containing any further information in relation to those matters that is in the power or control of the body.

Finally, the exemptions to the right of access are contained in sections 28 to 41 of the FOI Act (i.e. in Part 4 of the Act).

Analysis and Findings

The Council's decisions, in general, do not comply with the requirements of sections 13 and 21. In particular, they do not address part 3. The decisions do not make it clear whether relevant records either cannot be found in spite of reasonable searches or do not exist for the purposes of section 15(1)(a), or whether the Council does not hold any such records for the purposes of the FOI Act, or whether such records are exempt under particular substantive provisions of the FOI Act. This lack of clarity is unacceptable.

Upon acceptance of the review, this Office sought copies of the relevant records. The Council provided copies of records it had released to the applicant but none that it had identified and/or withheld in relation to part 3. This Office's Investigator brought the Council's attention to the requirements of sections 13 and 21, and to the possible issue to it of a notice under section 23 of the FOI Act. The Investigator asked the Council to firstly confirm whether it had searched for and located records relevant to part 3, and to provide copies of any such records it was withholding.

Arising from various ensuing contacts, the Council's position is that part 3 covers only records of correspondence relating to the audit. It indicates that it may hold a small amount of correspondence with the now former Councillor of perhaps an HR or finance nature e.g. regarding pension matters or general contacts with former staff. It appears to contend that the applicant is not seeking access to such records. I note that it says it will nonetheless carry out searches for such material.

I do not agree with the Council's understanding of part 3. It is broader than part 2 and covers any correspondence between it and the Councillor, regardless of its subject matter. Whether such correspondence may be exempt under the substantive provisions of the FOI Act is another matter, but this is not what the Council is contending.

While the applicant is of the view that the Council wilfully misinterpreted the scope of part 3, a review under section 22 does not extend to examining how a body dealt with an FOI request. I will say, however, that part 3 is clearly worded and also that the applicant highlighted the Council's mistaken approach to it in his internal review application. It is very difficult to understand why the Council continued to interpret part 3 as it did, particularly given that it has been subject to and dealing with FOI since 1998. Equally, and while not part of the review, the Council should be well aware that is not appropriate for it to withhold records merely because they are in draft form or are unapproved, or to make a general reference to the GDPR. Relevant FOI exemptions must be relied upon in relation to any records that exist, and the other provisions of sections 13(2)(d) and 21(5)(c) of the FOI Act complied with.

In the circumstances, the most appropriate decision for me to make is to annul the Council's decision on part 3 of the request. I direct it to make a fresh decision on the matter in accordance with the provisions of the FOI Act. Should a valid application be received arising from my decision in this case, this Office will endeavour to process that application as quickly as possible.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision on part 3 of the request. I direct it to carry out a fresh decision making process in respect of this matter, in accordance with the provisions of the FOI Act. The Council should note that it is open to it to commence its fresh decision making processes before expiry of the statutory deadline referred to below.

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.

Deirdre McGoldrick
Senior Investigator