Whether the Council was justified in refusing access to a particular investigation file and a letter from a legal advisor

20 June 2022

Background

The applicant's FOI request of 20 October 2021 sought access to (1) a particular file referred to in a 2008 Local Government Audit Service (LGAS) report; (2) a copy of a particular letter referred to in the 2008 LGAS report; and (3) all records concerning an investigation referred to in a 2019 LGAS report.

The Council's decision of 17 December 2021 refused the request under various provisions of the FOI Act. Its schedule listed seven records i.e. records 1-5 (part 2), record 6 (part 1), and record 7 (part 3). Both records 6 and 7 were described as -�investigation files-�.

On 4 January 2022, the applicant sought an internal review of the Council's decision on parts 1 and 2 of the request. The Council's internal review decision of 28 January 2022 affirmed its decision on the relevant records. On 31 January 2022, the applicant applied to this Office for a review of the Council's decision.

 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 decision on parts 1 and 2 of the applicant's request was justified under the provisions of the FOI Act.

Analysis and Findings

For various reasons, including ensuring the efficiency of a review, this Office seeks copies of original and redacted records for examination purposes. However, the Council provided this Office with original documents. It says that it did not have the resources to photocopy or scan the material concerned due to its volume. It provided three boxes of material which, according to the very general accompanying schedule, comprise 15 -�records-� relevant to parts 1 and 2 of the request. The Council does not explain why its decisions appeared to deal with only six records.

Part 1

The 10 relevant -�records-� comprise the majority of the contents of the three boxes. They relate to many parties e.g. the Council, a particular individual, other identifiable individuals and private businesses. There is a very broad range of documents at issue, including numerous files of invoices and other materials; various entire diaries, notebooks, and materials books; photographs; reports; and Council records regarding purchasing and accounts.

The Council confirms that it did not examine the actual contents of the documents when making its decision. It says that it made a general decision having regard to the record type.

Part 2

The Council considers five records to be relevant to part 2. From a brief examination, record 5 seems in my view to be the specific requested record. It is not apparent, nor has the Council explained, why it considers that records 1-4 are also relevant to part 2 (however, they may nonetheless fall under part 1).

The Council relied on section 31(1)(a) (legal professional privilege) in relation to the records concerned. However, its decisions do not address the applicant's argument that privilege has been waived because a sentence from the requested record is quoted in the 2008 LGAS report. I would also add that, even if privilege has been waived, the Council does not appear to have considered any other exemption provisions that may apply to the record concerned, having regard to its particular content.

FOI bodies are required to consider the actual contents of records, as well as the relevant circumstances, when deciding on the extent to which a record is exempt in the first place or releasable in the public interest. As set out above, this did not occur in this case.

The Council acknowledges that it should have engaged with the applicant at the outset about the volume of records at issue. The applicant says that he would have been happy to discuss this with the Council. He expresses concern that the Council deliberately handled the request in a way that would result in it being remitted for fresh consideration, thus delaying the grant of access to any records to which he may be entitled.

A review under section 22 does not extend to making findings on how an FOI body handled an FOI request. Nonetheless, the Council's handling of this request is very disappointing. Although I note its explanation about resource limitations, it has been subject to the FOI Act since 1998 and it therefore should be well aware of the Act's requirements. This Office expects not to see similar issues arising in further reviews involving the Council. 

In all of the circumstances, I do not consider it possible to make a decision on whether the Council's refusal of access to records relevant to parts 1 and 2 is justified under the FOI Act. Neither do I believe that it would be appropriate for this Office to act as a first instance decision maker on the matter. Amongst other issues, this would require the diversion of considerable time and resources from other reviews.

The most appropriate decision for me to make is to annul the Council's decision on parts 1 and 2 of the request, and to direct it to make a fresh decision on these 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 parts 1 and 2 of the request. I direct it to carry out a fresh decision making process in respect of these matters, in accordance with the provisions of the FOI Act. I also direct it to engage with the applicant at the outset with a view to narrowing the scope of the request. It is open to the Council 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