Decision
Mr Ken Foxe, Right to Know CLG and Local Government Management Agency
From Office of the Information Commissioner (OIC)
Case number: OIC-131499-K7M3V5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-131499-K7M3V5
Published on
Whether the LGMA was justified in refusing access to certain records relating to the County and City Management Association (CCMA) on the basis that it does not hold the records sought
16 March 2023
In a request dated 29 August 2022, the applicant sought access to records relating to the proposed appointment of a named individual to the board of the Housing Finance Agency. He said he understood the LGMA to hold records on behalf of the County and City Management Association (CCMA) which he described as a constituent part of the LGMA.
In a decision dated 26 September 2022, the LGMA refused the request. It said the CCMA is not an FOI body, that it is not a constituent part of the LGMA, and that it does not provide a service for the LGMA or act on its behalf. It said the CCMA is the ‘representative voice’ of the local government management network and is a representative body for the chief executives of the county and city councils and the assistant chief executives of Dublin City Council. It said that the LGMA provides administrative support to, and acts as a point of contact for, the CCMA on a voluntary basis. It said that it had identified one record relevant to the request, an email from the CCMA to the Department of Housing, Local Government and Heritage regarding the CCMA’s nominee for the board of the Housing Finance Agency. It said, however, that this record was held by the CCMA, and that it was not held or in the lawful possession of the LGMA. It said that access to the record was therefore being refused as the right to access records under section 11 of the FOI Act applies only to records that are held by and in the lawful possession of the LGMA.
On 27 September 2022, the applicant sought an internal review of the LGMA’s decision. He said that he believed the CCMA to be a public body for the purposes of the FOI Act. He noted that it used an LGMA email address and that it had already been confirmed that the LGMA provided administrative services and support to it.
On 18 October 2022, the LGMA affirmed its decision. It set out some historical background for both the LGMA and the CCMA and said that it understood the CCMA to predate the LGMA’s establishment in 1971 by about 30 years. It said that the CCMA had no statutory basis and was not a ‘prescribed body’ under section 7 of the FOI Act. It acknowledged that there was a connection between the CCMA and the LGMA, but said that this did not confer public body status upon the CCMA. It said that it was unable to establish any lawful basis to overturn the original decision, and that it was clear that the records sought were CCMA records that are not held by or in the lawful possession of the LGMA.
The applicant applied to this Office for a review of the LGMA’s decision on 19 October 2022. He said that he believed that the CCMA was a public body for the purposes of the FOI Act. He noted that its homepage was hosted on the website of the LGMA and that it shared resources/administration with that office.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the LGMA to the applicant’s comments in his application for review. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
In the course of the review, the LGMA identified two additional records as coming within the scope of the request. It provided this Office with copies of the three records. The first record is the email referenced in the original decision issued to the applicant, the other two records are minutes of meetings of the CCMA committee and executive committee, respectively. The LGMA redacted parts of these records it considered to be unrelated to the applicant’s request. Having examined the relevant records, I am satisfied that the redacted information does, indeed, fall outside the scope of the request and, accordingly, I will not consider such information any further.
While the applicant argued that the CCMA is a public body for the purposes of the FOI Act, and the LGMA made arguments as to why it believed the CCMA was not a public body, it is important to note that this review is confined to a consideration of whether the decision of the public body to whom the FOI request was made, i.e. the LGMA, was justified. Regardless of whether or not the CCMA is a public body for the purposes of the Act, the LGMA refused the request on the ground that it does not hold the records sought. Accordingly, this review is concerned solely with whether the LGMA was justified in its decision to refuse to grant access to records relating to the proposed appointment of a named individual to the board of the Housing Finance Agency on the ground that it does not hold the records sought for the purposes of the FOI Act.
Section 11(1) of the FOI Act confers a general right of access to records held by an FOI body. That right of access is subject to the other provisions of the Act. While the FOI Act does not define "held", this Office accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act.
The Drogheda Review case
The Supreme Court considered the meaning of “held” for the purposes of the FOI Act 1997 in Minister for Health v Information Commissioner [2019] IESC 40 (commonly known as the Drogheda Review case). In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, former High Court judge Justice T.C. Smyth, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda.
Following the completion of his work, the reviewer, who had set the terms upon which he obtained the relevant information, sealed the transcript with other records and deposited them with the Department of Health for safekeeping. The reviewer stipulated that the boxes of records were not to be disclosed or opened in any circumstances except by court order for discovery, of which he wished to be notified. The issue before the Court was whether the records were held by the Department of Health for the purposes of the FOI Act.
In her judgment in the case, Finlay Geoghegan J. accepted that the equivalent provision of the Freedom of Information Act, 1997 (the Act of 1997) (section 6(1), which provides for the right of access to records held by public bodies), gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record “held” by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be answered are distinct.
On the meaning of held, Finlay Geoghegan J. found that for a record to be held within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.
Section 11(1) of the Act of 2014 is the equivalent of section 6(1) of the Act of 1997. As such, having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that for the records sought in this case to be deemed to be held by the LGMA, it must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.
The LGMA’s submissions
In its submissions to this Office, the LGMA said that the LGMA and the CCMA were two separate and distinct entities in their nature, role, establishment and function. It said that the CCMA was a network of Chief Executives and a non-incorporated body, without its own budget or funding. It said that each individual Chief Executive is a stand-alone entity in their own right whose authority is limited to their own local authority. It said that the role of the CCMA is that of a collegiate body which has no powers as it relates to the application or enforcing of any policies or procedures in individual local authorities other than on a voluntary basis by the agreement of each Chief Executive.
On the other hand, it said that the LGMA is a statutory body established to provide support to local authorities in the delivery of their functions, and while it provides administrative support to the CCMA this is undertaken on a voluntary basis and is not a legal or formalised relationship.
In relation to the records at issue, the LGMA said that it had no role in the nomination of a Chief Executive of a local authority to a role with the Housing Finance Agency. It said that the CCMA was requested to make such a nomination from its membership and the decision lay solely with it. It said that the LGMA’s sole role in this matter was to communicate the decision to the Department that had made the request. It said that the subject matter of the records is not related to the business or functions of the LGMA as a public body.
Responding to specific questions from the Investigator about the nature of the support provided by the LGMA to the CCMA, the LGMA said that it provides administrative support to the CCMA on a voluntary basis, without any formalised or legal agreement, memorandum of understanding etc. It said that an LGMA employee confirms the agenda for meetings as set by the CCMA, attends the meetings to take minutes, and communicates actions to other parties arising from the meeting, if requested to do so by the CCMA. The Investigator asked about the basis on which the staff members of the LGMA provide such support, for example is support provided in the course of their day-to-day work with the LGMA or is it provided separately in some way. The LGMA responded that senior managers in the LGMA have responsibility for specific business areas reflecting the key functional service delivery areas for which local authorities are responsible. It said that the staff members who do this engage with specific CCMA committees in order to ascertain the views of the CCMA on shared services and on wider general sectoral engagement.
Furthermore, the LGMA said that its Chief Executive and Assistant Chief Executives attend relevant CCMA meetings to provide updates to the CCMA on the work of the LGMA in supporting the various sectoral initiatives and engagements. It said that the basis of collaboration between the CCMA and the LGMA is reflective of the nature of the respective entities, reiterating that the CCMA is a collegiate body without powers while the LGMA has a role defined in statute, to essentially bridge the gap between government and local authorities to ensure consistency of service delivery across 31 local authorities. It gave the example of government policy on the delivery of accommodation for Ukrainian refugees. It said that this was co-ordinated through the LGMA but delivered on an individual basis through each local authority, with delivery on this a matter for each individual Chief Executive. It said that it was logical that the implementation of government policy, such as this one, was initially addressed and informed through the CCMA as a collective body.
In relation to access to records created as part of the LGMA’s provision of support to the CCMA, the LGMA said that in line with its general records management policy, any records created are saved on its SharePoint system. It said that employee’s access to SharePoint is restricted to the areas required for the purposes of their specific role. It said that access is set up when an LGMA employee commences their role and thereafter their access is amended if their role changes, or the nature of the business area in which they are working changes. It said that this approach reflects standard cyber security precautions.
As outlined above, the test outlined in the Drogheda Review case for determining whether a record can be deemed to be held by a public body for the purposes of the Act comprises two elements:
It is important to note that both elements of the test must be met.
In relation to whether the LGMA is in lawful possession of the records at issue in connection with, or for the purposes of, its business or functions, I have carefully considered the LGMA’s submissions and the descriptions of the respective roles of the LGMA and the CCMA and how they work together. I note the distinction made between the respective powers of the two entities, and the emphasis on the CCMA having no statutory function or authority but rather being a collegiate network of local authority chief executives, albeit one that predates the LGMA by a number of decades. I do not, however, see the relevance of this point to the question of whether the LGMA is in lawful possession of the records in connection with its business or functions.
The LGMA, as it says on its website, works collaboratively with all 31 local authorities to support the coordinated and cost-effective delivery of local government services and policy, and helps local authorities to implement change and enhance performance. One of the many ways that it does this, it appears to me, is through working with the CCMA. From its submissions, I note that this work goes beyond simply providing administrative support, and includes engaging with relevant CCMA committees on specific service delivery areas and using the CCMA as a forum for communicating important government policy issues.
Furthermore, I note that the LGMA’s Corporate Plan 2020-2022 includes several references to working with the CCMA, including the provision of a monthly update to it, and the following specific actions under various pillars of the plan:
I also note the strong connection between the two entities when it comes to governance. The LGMA has a Council made up of all local authority Chief Executives. The Corporate Plan describes how the board of the LGMA is formed:
“The Council appoints, from among its members, not less than six and not more than eight members to the LGMA Board for a period not to exceed three years. These are normally the same members as the County and City Management Association (CCMA) Executive.”
The LGMA was established under the Local Government Management Agency (Establishment) Order 2012 (SI No. 290 of 2012). Article 5 provides that the services to be provided by the LGMA may include the services provided for in the Local Government Services (Corporate Bodies) Act 1971 (Transfer of Functions of the Local Government Management Services Board) Order 2012 (SI No. 289 of 2012). I note that Article 3 of SI No. 289 of 2012 provides that the functions to be transferred to the LGMA include “to provide for managers such services for meetings of managers and such other support services as the Council shall from time to time determine”.
The records at issue in this case were created in the course of the LGMA providing administrative support to the CCMA, in this instance, taking minutes of meetings and emailing a decision of the CCMA to a Government department on its behalf. Having considered all of the above, I simply cannot accept that the LGMA is in possession of these records for any reason other than for the purpose of its functions. I find that the first element of the test is met.
The second test is whether the LGMA is entitled to access the information in the records. The LGMA explained that its electronic records are stored on SharePoint and that access for staff members is limited only to areas that they need access to for their specific role. This seems to be a generally standard approach taken by most organisations. It appears that access is provided to those that require access in order to carry out their functions. There is nothing to suggest that the LGMA is not entitled to access the information contained in the records. I find that the second element of the test is met.
I am satisfied that the LGMA holds the records at issue for the purposes of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the LGMA to refuse the applicant’s request under section 11(1), and direct release of the three records at issue.
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.
Stephen Rafferty, Senior Investigator