Whether the Council was justified in refusing to fully grant the applicant's request for records relating to various entries in its CEO's diary

19 July 2018 

Background

On 21 December 2017, the applicant made an FOI request to the Council for "the following records, documents, correspondence, emails, Draft memos/memos, reports and draft reports/reports prior to and subsequent to the following Meetings (and minutes/notes of these meetings) as noted in the Diary entries between the relevant individuals, parties and bodies etc;"

1. Meeting re FOI and AIE - 6 May 2016
2. Meeting with named person - 16 November 2016
3. Two Staff Briefings - 1 June 2017
4. Strategic Issues - 16 January 2017
5. Kilkenny Abbey Quarter Development Ltd - 23 June 2017
6. Meeting in Scotland - 18 July 2017
7. Meeting with Bord Fáilte- 13 September 2017.

The Council's decision of 18 January 2018 partially granted the request. It gave partial access to three records relevant to parts 1, 3 and 7 and relied on sections 29 (deliberative process), 30(1)(b) (management functions) and 37 (personal information) in relation to the rest of these records. It relied on Schedule 1, Part 1 of the FOI Act in relation to records relevant to part 5. It said that no records were created in relation to parts 2 or 6 and that there was no meeting in the CEO's diary for 16 January 2017 (part 4), effectively refusing these parts of the request under section 15(1)(a) (records do not exist).

The applicant sought an internal review on 9 February 2018 (for which he paid the relevant fee on 14 February 2018), and said that he would also "on a later date lay out where and why [he believed] the fullest release is desirable and possible." The Council's internal review decision of 8 March 2018 simply recited the applicant's request and said that "[h]aving reviewed the file, documentation and discussed with relevant staff [the internal reviewer was] satisfied that all documentation relating to the meetings in question have been released." 

On 9 March 2018, the applicant sought a review by this Office of the Council's decision. In the course of the review, the Council granted full access to two records relevant to part 6. 

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Council, and the applicant. I have had regard also to the records considered by the Council and to the provisions of the FOI Act. 

As will be evident from the decision that follows, the broad nature of the request as made gave rise to some difficulties in this review. 

Scope of Review

This review is confined to whether the Council has justified its refusal to fully grant the applicant's request. The applicant accepts the Council's application of section 37 to the personal information withheld from the record relevant to part 1 and I will not consider that record further.

Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant FOI body shows to my satisfaction that its decision was justified. 

Control of records  - section 11(5)
In so far as part 5 of the request is concerned, the Council says that Kilkenny Abbey Quarter Development Ltd (the company) was set up in 2016, with two directors from the Council (one of which is the CEO) and two from the NTMA. It says that a board was set up to run the company, comprised of an independent chair, two representatives from the Council and two representatives from NTMA. Its position is that the CEO attended the meeting in her capacity as a company director. It says that the company would maintain a record of the meeting and that, while the CEO was provided with certain records in her role as company director, the records are not under the Council's control and therefore not subject to the FOI Act. 

Thus, the Council's position is that it holds no records in its own right regarding the operations of the company. In this regard, I accept that section 15(1)(a) applies, which 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. However, section 11(5) of the FOI Act provides that a reference to records held by an FOI body includes a reference to records under the control of that body. 

The applicant argues that the Council controls the company and therefore holds relevant records. Although he did not make this particular point in his request, his email to the Council of 14 February 2018 in relation to his internal review application included a link to the judgment of the High Court in the case ofWestwood Club v The Information Commissioner [2014] IEHC 375), which dealt with the matter of "control" in an FOI context. While he did not comment further, it can be inferred that he was arguing that the Council controls the company and its records. The Council confirms, however, that its internal reviewer was not aware of the applicant's email of 14 February 2018. Thus, it has not formally considered whether it controls the company and its records for the purposes of the FOI Act. 

The applicant has made various arguments as to why this review should consider this issue. However, as he is aware, this Office does not have remit to consider matters that have not been subject to an original and internal review decision. The most appropriate decision for me to make in the circumstances is to annul the Council's effective refusal of any relevant records held by the company. I remit the particular matter of whether the Council controls the company, and in turn any relevant records held by it, for fresh consideration by the Council in line with the requirements of the FOI Act. 
I should clarify that this direction does not require the Council to consider whether the company is an FOI body in its own right; the request was made to the Council and covers records held or controlled by it. 

Whether further records exist - section 15(1)(a)
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 all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records. 

In considering section 15(1)(a) in this case, it should be noted that this Office has no remit to examine, or make findings on, whether or not the Council or individual staff should have created further records, the level of detail in records that were created, the adequacy of the Council's record management policies or its adherence to those policies. In this regard it seems to me from the submissions of the applicant that he may be under the impression that the Commissioner's role in reviews such as this is wider than that of considering the right of access to records held. 

The applicant's submission to this Office outlines why he believes that the Council should hold further records relevant to each part of his request. I will deal with each part of the request, and the Council's position on each, below. However, on a general note, the Council says that the CEO's personal assistant would have been involved in efforts to ascertain whether records exist and has confirmed that, where no records exist in relation to parts of the request, she could not locate or does not hold such records. The Council says that she would have searched electronic and paper records in relation to her role as personal assistant, as would have staff who acted in the role of personal assistant to cover leave. It also says that staff are not required to minute informal meetings and that it does not have a policy for the retention of records relating to such meetings. 

Part 1
The Council's position is that it created only one record (which lists and describes Access to Environmental Information (AIE) requests made to it in 2016), and that no further records were created because it was not a statutory or formal business meeting. It says that only the CEO, FOI officer and administrative officer were present and that they hold no records that were created for, at, further to, or after the meeting. 

This Office asked the Council to clarify whether any staff present took notes (including notes they had subsequently disposed of) given that the meeting was presumably considered necessary even if not statutory or formal. The Council says that the meeting was held to review the FOI and AIE requests to date, that staff dealing with such requests would deal with them within the statutory timelines and that it would not be necessary to maintain any additional records other than the records on the individual FOI and AIE files. It reiterates that the relevant employees have confirmed that they hold no records or notes in relation to this meeting.

The applicant says that minutes should have been taken and asks what type of meeting constitutes a formal business meeting. He outlines his concerns that the meeting was attempting to frustrate the requests at hand so as not to grant them. 

I have no role in investigating or determining what might have been discussed at meetings or whether minutes should have been created. I see no reason to dispute the Council's submission that no further records were created. I find that section 15(1)(a) applies to this part of the request. 

Part 2
The Council says that this was a social meeting with the named person who is a former Council employee. Its position is that no other staff attended and that the CEO created no records before, at, further to or after the meeting because it was not a statutory or formal business meeting. This Office also asked the Council to confirm whether the CEO's personal assistant was asked if he or she holds or can locate records relating to this meeting. I have already outlined the searches that the Council says were carried out by the personal assistant and others who covered the role during annual leave. It remains the Council's position that there were no emails or notes from this meeting. 

The applicant has copied this Office with correspondence between him and the Council regarding his views on the parties' possible compliance with lobbying legislation. He also says that, as a taxpayer, he expects public officials to be working at their workplace, not socialising.

The applicant says that he finds it extraordinary that the CEO would not have kept notes of this meeting and "demand[s] the CEO to go on the record and state definitively that she A. took no relevant notes. B. She didn't discard relevant notes." He also asks how the meeting was facilitated and if relevant telephone records exist. 

I see no reason to dispute the Council's position that its CEO has confirmed that she created no records in relation to this meeting. I find that section 15(1)(a) applies to this part of the request. 

Part 3
The Council has granted partial access to a management briefing note and its position is that no further records exist. The applicant argues that any notes taken by staff are covered by his request. 

The Council says that it is normal practice for management to give verbal briefings/updates to ensure staff are better informed, notwithstanding that matters outlined might not yet be finalised. It says that, having regard to the numbers involved, it did not ask the staff present at the meetings whether they took and retained notes.

I accept that the Council created no "formal" records other than the management briefing note. I find that section 15(1)(a) applies to this part of the request with the exception of any notes that may exist if taken by staff at the briefings. I accept that the request as worded could be read as including any such notes. With the benefit of hindsight, it would have been helpful to all involved if the Council had clarified the range of records that the applicant was seeking. The most appropriate decision for me to make in the circumstances is to annul the Council's effective refusal of any such notes that may have been taken by staff and remit this particular matter for fresh consideration by the Council in line with the requirements of the FOI Act.

I realise that it is by no means a given that any notes were created in the first place, and/or retained for over a year by the staff members who attended the briefings. I consider that any steps that might be taken by the Council to contact staff and ascertain whether or not they hold records within the scope of this part of the request would have to be proportionate and not unreasonable.

It is also open to the Council to consider the other provisions of section 15 if, for instance, its position is that unreasonable disruption would be caused to its work as a result of the retrieval process. Furthermore, even if records are identified as being held, there is also the possibility that, depending on their content, such notes might contain personal information or otherwise exempt material.

Part 4
The Council did not rely on any provision of the FOI Act in refusing to grant this part of the request. Its decision simply said that the meeting is not in the CEO's diary for this date, which is borne out by the copy of the diary entry concerned that it provided to this Office. It did not clarify the incorrect details with the applicant. The applicant says that the Council was aware of his mistake and that the Act must oblige it to help a requester where possible. 

It would have been good practice for the Council to clarify the date. The fact that it was incorrect would have been obvious from a brief examination of the CEO's diary. That said, it was also open to the applicant to correct his mistake, which would have been obvious to him on receipt of the Council's January 2018 decision. 

I accept that there was no meeting for the date specified in the applicant's request and that the particular records he requested do not exist. I find that section 15(1)(a) applies.

Part 6
The Council granted access to a travel agent's confirmation invoice and a boarding pass that it found further to this Office's request for submissions. Its position is that no further records exist. The applicant says that there should exist an invitation, course materials and other correspondence regarding the CEO's attendance and travel to Scotland for this meeting. 

The Council says that the CEO, as a member of the City and County Managers Association, Water Services Sub Committee, was verbally invited by the Department of Housing, Planning and Local Government to attend a study trip in Scotland "in relation to the operation of the water utility model". It confirms that no other staff attended and that no documents were created before, at, further to or after the trip/meeting. It says that both the CEO and her personal assistant confirm that no notes were taken that were subsequently disposed of. It says that the CEO's personal assistant booked the travel arrangements directly with the travel agent and that Irish Water arranged the CEO's overnight accommodation for which she paid by credit card. 

This Office asked the Council to clarify whether any records exist showing that the CEO or any other staff member asked the inviting Department for official confirmation of its invitation, or showing that the verbal invitation was followed up in some way for audit or other purposes. The Council says that no such records exist. 

While the applicant questions the public benefit of the trip, it is not part of my remit to consider such a matter. He also asks whether there are any notes taken by the CEO's management team of any briefing she may have given them and if there were any information manuals or memos or executive summaries created concerning the conference.

Having considered the wording of the request, and the Council's response to the various queries and requests for clarification in the course of this review, I do not have any basis to further pursue the issue of whether further records were generated and are held concerning travel, the conference itself or follow up to it.

I find that section 15(1)(a) applies.

Part 7
The Council says that only the CEO attended this meeting, at which she met with the Chief Executive of Bord Fáilte. It says that the CEO provided him with a document that was already in existence at this time (a presentation, which has been partially granted).
The Council says that the CEO made the arrangements for the meeting and that no records were maintained at it. It says that it has a number of flagship projects for which funding support would be sought and that these meetings are to demonstrate the Council's forward planning and to focus on the City and County as a tourist destination. 
The applicant says that it is not acceptable that meetings concerning such huge public spending are not minuted. Again, this is not a matter for this review. I accept the Council's position that further records relevant to this part of the request as worded do not exist. I find that section 15(1)(a) applies.

Deliberative process - section 29
The Council refused to grant full access to the presentation relevant to part 7 of the request on the basis that the withheld details were exempt under section 29. 

Section 29(1) is a discretionary exemption. It contains two independent requirements. It provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. While the provision does not contain any "harm test", the matter of whether release would be contrary to the public interest generally requires a public body to identify a harm that would flow from the release of the details. 
The Council says that the document contains some conceptual illustrations of potential tourism developments for Kilkenny. It says that the withheld details concern "concepts which, if progressed, would require both planning consultation and possibly planning consents and as such are deemed premature and would require further consideration, collaboration and assessment against existing environmental and heritage policies before being released into the public arena." It says that "given the premature and potentially sensitive issues involved, it would be misleading to release these concepts at this very early stage of deliberation and bearing in mind that the concepts might never progress and therefore the Council's decision to redact this information is reasonable."

I can accept that a record, relating to various matters considered by the Council as to how it might promote the city and county as a tourism destination, relates to deliberative processes. Its position appears to be that it is contrary to the public interest to grant access to information concerning matters that are early stages of deliberation and which may not progress. However, the fact that relevant deliberations may not be complete does not, of itself, mean that it would be contrary to the public interest to grant access to the withheld information. The Council did not identify any particular harms that may result from disclosure of the particular withheld information in such circumstances, or explain how those harms would arise. I do not consider its submission to provide me with any basis on which I could accept that the grant of access would be contrary to the public interest. 

I annul the Council's refusal of the withheld details under section 29 and I direct it to grant access to them. 

Functions relating to management - section 30
The Council refused to grant full access to the management briefing it considered relevant to part 3 of the request on the basis that certain brief details were exempt under section 30(1)(b). 

Section 30(1)(b) of the FOI Act is a discretionary exemption that provides for the refusal of a record if access to the record concerned could, in the opinion of the head, reasonably be expected to "have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff)". The Commissioner expects an FOI body relying on section 30(1)(b) to identify the potential harm (which, as noted, must be a "significant, adverse effect") to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. A record to which section 30(1)(b) applies may nonetheless be required to be granted further to consideration of the public interest test at section 30(2) of the FOI Act. 

The Council says that the withheld information "relates to details on the management of staff and the release of same could cause a significant adverse effect on the ability of the Council to manage its staff." 

It says that it had regard to the public interests in openness and objectivity in the decision making processes, in the need for the public to be better informed and in the public knowing how the Council performs its functions. In considering the public interests against release, it says it had regard to the need to protect the efficient and effective management of the Council, to ensure that FOI is not used to the detriment of the equitable treatment of staff and "in the public knowing the details of day to day staff operations and the implications of same on the delivery of service to the public." It considers the public interest to weigh in favour of the details being refused. 

I do not consider the Council to have justified its application of section 30(1)(b) in the first place. While it has made various assertions as to the harms it envisages arising from the grant of access to the withheld information, it has not explained how those harms could reasonably be expected to arise, having regard to the particular information at issue. While I cannot describe here the content of the relatively small amount of information at issue, the Council's submissions have not pointed me to anything that, if released, could reasonably be expected to cause serious adverse affect. 

I annul the Council's refusal of the withheld details under section 30(1)(b) and I direct it to grant access to them. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision. 

I annul the Council's effective refusal of part 5 of the request in so far as it extends to records held by the company that may be under the Council's control. I also annul the Council's effective refusal of part 3 of the request in so far as it extends to any notes taken by staff at the briefings. I remit these particular matters for fresh consideration by the Council in line with the requirements of the FOI Act. The decisions made will be subject to the usual rights of review. 

I otherwise affirm the Council's application of section 15(1)(a) to each part of the request. 

Finally, I annul the Council's application of sections 29 and 30(1)(b) to the two partially granted records relevant to parts 3 and 7. I direct it to grant access to the records in full. 

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Council to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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. 

Elizabeth Dolan
Senior Investigator