Case number: 170487

Whether the Council was justified in refusing to grant access to records relating to certain allegations, the subject of an investigation, on the basis of sections 30(1)(a) and 32(1)(a) of the FOI Act

02/02/2018

Background

On 30 June 2017 the applicant made a request for access to records concerning "All job cards issued by [a named company] ... to include a copy of all Invoices and Schedule of Payments made on foot of the job cards presented".

It is important to note here that this was one of four separate requests submitted by the applicant to the Council concerning the hire, sale, or invoicing processes associated with machinery plant relating to the Council. The others are the subject of my review under reference numbers 170484, 170485 and 170486.

The Council refused access to the records on the basis of sections 30(1)(a) and 32(1)(a)(i) of the FOI Act. Following an application for review, the Council issued a single, internal review decision which covered all four of the applicant's requests and their associated original decisions. In that decision, of 6 September 2017, the Council affirmed its original decisions and refused access to all the records on the basis of sections 30(1)(a) and 32(1)(a)(i) of the FOI Act. However, the Council did not provide any information about the reasons for its decision, as required under section 13(2)(d)(i).  On 6 October 2017, this Office received an application for a review from a solicitor acting for the applicant.

I wish to state at the outset that I am disappointed with the decision making process of the Council in this case. Section 13 of the FOI Act provides that where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and 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 13(2) refers). Given that the Council has been subject to the provisions of FOI legislation since 1998, I assume it ought to be fully aware of its obligations under the FOI Act.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the Council and to correspondence of the applicant, the Council and this Office. This Office invited the applicant's representative to make a submission but none was received. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

Scope of Review

This review is solely concerned with whether the Council was justified in refusing to grant access to the records on the basis of sections 30(1)(a) and 32(1)(a) of the FOI Act.

Preliminary Matters

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that in this case, the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Council to satisfy the Commissioner that its decision is justified.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records in the analysis that follows is limited.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

Section 30(1)(a)
Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. It is subject to a public interest balancing test in section 30(2).

When a public body relies on section 30(1)(a), it should first identify the potential harm or prejudice to the relevant test, examination, investigation etc and show how releasing the record could reasonably be expected to prejudice the effectiveness of the relevant test, examination, investigation etc. The Commissioner accepts that section 30(1)(a) is not aimed solely at investigations etc. now in progress but may also cover similar exercises conducted in the future. The FOI body should go on to consider the public interest test under section 30(2). 

In its submission, the Council stated that it is conducting an investigation under its Grievance and Disciplinary Procedure relating to allegations of breach of procedures of the Code of Conduct for Local Government Employees. The Council also stated that the records form part of the material evidence associated with the investigation and that their premature release has the potential to undermine the integrity of that investigation process. It says that release of the records could impair its ability to complete investigatory proceedings, which "could lead to the commencement of criminal/legal proceedings".

Having regard to the particular content of the records and information provided to me by the Council on the nature of the investigation at this time, I accept that it is reasonable to expect that releasing the records could prejudice the effectiveness of this investigation and other potential proceedings. I therefore find that section 30(1)(a) applies to the records.

Section 30(2) - The Public Interest
In view of this finding, I am required to apply the public interest balancing test under section 30(2) of the FOI Act.
Section 30(1)(a) itself reflects the public interest in FOI bodies conducting investigations effectively. However, there is a public interest in transparency around the way in which the Council carries out its functions. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making.

While a submission was not received from the applicant, he did refer in his letter of application, to the "mis-use of public monies".
The Council stated that it accepts that the public have a right to know how public money is spent and to know about any misappropriation of public monies. It also argued however, that the public interest is better served by it having the ability to conduct its investigation using due process and "potentially recoup any loss to the public purse".

I have had regard to the fact that the Council's investigation is ongoing. I accept that the records contain information which, if disclosed, could reasonably be expected to have significant negative consequences for the Council's ability to conduct an investigation. In the circumstances of this case, I consider that the public interest in ensuring an effective investigation outweighs any public interest in transparency around the way in which the Council carries out its functions. I therefore find that on balance, the public interest would not be better served by granting access to the records at this time.

In light of my finding that the records are exempt under section 30, I do not consider it necessary to examine the Council's claims for exemption under section 32(1)(a)(i) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Council's decision.  I find that the Council was justified in its decision to refuse to release the records on the basis of section 30(1)(a) 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