Whether the Council was justified in refusing access to further records, concerning a motion withdrawn from a Council meeting, under section 15(1)(a) of the FOI Act (reasonable searches)

28 November 2023

Background

This review has its background in a motion that was initially proposed in April 2023 by a named Councillor. The Council voted in relation to the overall subject matter of the motion on 4 September 2023.

The applicant's emailed FOI request of 12 May 2023 sought access to all records, held by the Council, concerning a related motion that was withdrawn from the then upcoming Council meeting of 15 May 2023. The Council's decision of 12 June covered one record, which it refused under section 31(1)(a) of the FOI Act (legal professional privilege (LPP)).

The applicant sought an internal review on 13 June 2023, and also described further records that he said the Council should have considered for release. The Council's internal review decision of 7 July 2023 said that it was granting access to three requests for legal opinions, and withholding two records of advices received under section 31(1)(a).

On 20 July 2023, the applicant applied to this Office for a review of the Council's decision, including in relation to the adequacy of its searches. He provided copies of various documents, which he said he had been given by a third party, in support of his view that the Council should hold further relevant records.

 As is normal procedure, this Office asked the Council to provide copies of the records it had considered in its decisions. In so doing, the Council informed this Office that it had found another three records, of which it releasing two and withholding the third under section 31(1)(a).

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, correspondence between this Office, the Council and the applicant, the contents of various records including those covered by the Council's decisions, and the provisions of the FOI Act.

Scope of Review

Further to my contacts with the applicant, he confirms that my decision may be confined to considering the adequacy of the Council's searches for records covered by his request. It is the Council's position that it has located, and carried out reasonable searches for, all such records. This is an effective reliance on section 15(1)(a) of the FOI Act. Accordingly, my review will consider whether the Council is justified in its effective reliance on that provision.

However, and as the applicant now knows, his request and this review do not extend to any records created after 12 May 2023. The applicant also confirms that he is not seeking access to any records held by Councillors.

Preliminary Matters                                                                     

The applicant refers to the Council's provision to him of incorrect contact and payment information for this Office. He says that many others could have been given similar incorrect details, and that the Council's failure to fulfil its responsibilities under the FOI Act has cost him money and time.

While the applicant initially also asked for a reimbursement as well as an explanation, he acknowledges my explanation regarding the FOI Act's requirements for the payment of application fees to this Office. He also knows that we have reminded the Council to ensure that it provides requesters with correct fee and contact details for this Office, and that the Council apologises for giving him incorrect information. Although he says that the Council should apologise directly to him for its inadequate communication, which he says wasted his time, this is not a matter that I can address in this review. A review such as this, which is carried out under section 22 of the FOI Act, does not extend to the Council's administration of the FOI request or its performance of its functions generally.

Analysis and Findings

Section 15(1)(a) "� reasonable searches/records do not exist

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to look for records.

The parties' arguments

As noted already, the applicant provided copies of various documents in support of his view that the Council should hold further relevant records. He expresses concern over the Council's failure to locate these documents and potentially others (even if some of the latter may ultimately be exempt because they attract LPP). He says that his request explicitly sought all digital communications held by the Council. Given the controversial nature of the motion and media reports about the matter, he says that he anticipated several text/WhatsApp messages yet none were found. He is very concerned that the Council is not meeting its obligations under the FOI Act. 

The Council says that its role in relation to the placing etc. of motions on a Council agenda is provided for under Schedule 10 of the Local Government Act 2001 (the 2001 Act) and related Standing Orders. It says that relevant records are held by the Meetings Administrator, which is a role that is also defined in the 2001 Act. It says that there is no specific system to manage motion correspondence, etc. because the subject area does not attract a huge volume of correspondence. It says that "[a]ny correspondence was by email, and retained as such in a secure back up email system."� It states that no records have been, or can be, destroyed.

The Council says that the named Councillor copied many fellow Councillors and Council staff in relation to the matter. Its position is that while it holds a limited number of records extending to 4 September 2023, it has identified all records held as at 12 May 2023. It contends that, therefore, all of the records identified by the applicant (which I described in general terms in my request for submissions) must have been created after 12 May.

One element of my request for submissions listed email addresses from emails that had been received or sent by the named Councillor (as contained in the records copied by the applicant to this Office). I asked the Council to identify which of the addresses were for its staff and which were for elected members. I asked if those Council staff had been consulted and if their records had been searched. I note from the Council's reply that most of the email addresses are for individual Council staff, including the person who is the Meetings Administrator, as well as a group email for the Council's executive management team. The Council says that these were not consulted nor were their records checked.

Furthermore, given that section 2(5) of the Act specifies that records held by an FOI body includes records under the body's control, I asked the Council whether it had asked its legal advisor if it holds relevant records. The Council says that it is still awaiting a response from its legal advisor on this matter.

Analysis

I note the applicant's concerns about the Council's approach to the FOI Act. However, as explained earlier, this review cannot examine the Council's practices and procedures for dealing with FOI requests generally.

In considering section 15(1)(a), this Office takes the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or cannot be found. Nonetheless, section 15(1)(a) requires the FOI body to take all reasonable steps to locate relevant records.

I note that the Council has found seven records dating from April and May 2023, largely consisting of emails between a particular staff member (Mr Z) and the Council's legal advisor. Some of these emails were copied to individuals whom the Council confirms are staff, including the Meetings Administrator. I note also that one of the records found by the Council during this review appears to correspond with a document described in the internal review application as missing. In addition, I note the Council's position that motion-related correspondence should be held on an email system, and otherwise that the Meetings Administrator holds relevant records.

However, the Council does not say how relevant documentation is filed on either the email system or by the Meetings Administrator. It does not describe any searches carried out accordingly, even though I asked it to list each paper and electronic file examined and the search methods and terms used. It does not explain how or where it found the seven records identified to date. In addition, while the Council also maintains that "[a]ny correspondence was by email"�, there is a physical date stamp on the letter sent to the Council's Chief Executive (as contained in the released record 6). This suggests that not all relevant records are electronic. While it would be possible for me to seek clarification on these matters, I do not intend to do so in light of other issues arising from the Council's submission.

In particular, as noted above, the Council confirms that it did not ask staff if they held relevant records or check their records. In my view, this is a reasonable step to expect the Council to have taken, particularly when there is no specific system for filing motion-related correspondence. I note here that the material provided by the applicant to this Office includes further emails pre-dating 12 May 2023, which were either sent or received by and/or copied to Council staff and the management team (including Mr Z and the Meetings Administrator). It is reasonable to expect the Council to have found some or all of these emails by searching individual staff email accounts. I also draw the Council's attention to the applicant's comments about the lack of texts and Whatsapps.

Finally, while I note that the Council's legal advisor has yet to respond as to whether it holds relevant records, it is not clear when the Council queried the matter or, more importantly, if it has followed up the lack of response.

In all of the above circumstances, I do not have a basis on which to find that the Council has taken reasonable steps to search for records held by it which are covered by the request. I find that the Council was not justified in its effective reliance on section 15(1)(a) of the FOI Act. I consider it appropriate to direct the Council to undertake proper searches for the records covered by the request of 12 May 2023. If it locates additional records within the scope of the request, I direct it to make a fresh decision on those records in accordance with the provisions of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's effective reliance on section 15(1)(a). I direct the Council to undertake proper searches for records covered by the request of 12 May 2023. If it locates additional records within the scope of the request, I direct it to make a fresh decision on such records in accordance with the provisions 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.
 

Anne Lyons
Investigator