Leighton v Shire of Kalamunda [2008] WAICmr 52

[Bold text denotes emphasis added].

Leighton v Shire of Kalamunda [2008] WAICmr 52 (20 November 2008).

In this application under the Freedom of Information Act 1992 (WA) ("FOI Act"), the complainant submitted that the respondent, a local government area body (Shire of Kalamunda), had failed to undertake "all reasonable steps" for e-mails received by two Councillors (Mr and Mrs Sadler) between 1 January 2007 and 19 October 2007.

Timeline

• 1 January 2007 – 19 October 2007: FOI Application Scope.
• 20 October 2007: Following an ordinary election, Mrs Sadler was no longer a Councillor.
• 18 January 2008: Complainant's lawyers sent FOI Application to Respondent.
• 24 January 2008: Complainant's lawyers sent letters to both Councillors to highlight their preservation obligations under the FOI Act, specifically in relation to electronic documents.
• 6 February 2008: The Councillors (Mr and Mrs Sadler) advised the Respondent that they no longer had any potentially relevant electronic documents. Further, "due to limited filing space ...(Mrs Sadler) destroyed all of the documents she felt were no longer needed, and deleted the unwanted e-mails regarding the same."
• 28 February 2008: The Respondent advised the Complainant that no electronic documents were available from the Councillors, and that "all reasonable steps have been taken to find the documents."
• 25 March 2008: Appeal from Respondent to Information Commissioner.
• Submissions: Complainant offered to pay the costs of a computer forensic examination "to determine that all documents falling within the scope of our client's application have been identified and properly assessed against the FOI Act."

Framing an FOI Application for E-mail

• At [22], the Complainant only requested e-mails received by the two Councillors (To, CC, BCC).
• Per [64], a re-drafted application for e-mails both sent and received by the two Councillors, to or from, any and all other Councillors, may have increased the likelihood of identifying potentially relevant e-mails.

Records Management of Electronic Documents and E-mail by a Local Government

• The Respondent maintained a records management policy in compliance with the State Records Act 2000 (WA) ("SR Act") and State Records Office.
• The Respondent also employed a Records Officer and operated an Electronic Document Management System ("EDMS") to manage their "Central Records".
• E-mails held by the Councillors were of significance to the Complainant.
• However, Councillors were not provided with an e-mail managed by the Respondent and instead used personal e-mail addresses to interact with other Councillors, and the public.
• Both Councillors shared the same personal e-mail address. The personal e-mail address appeared to be provided by their Internet Service Provider and any e-mails received were only available on a personal computer at their residential address.

Alaska Governor Sarah Palin was recently revealed to use personal e-mail addresses for government business. Notwithstanding the inherent security risk, it may be argued that at least Governor Palin used a web-based e-mail service (Yahoo!), which facilitates increased storage space and accessibility from any Internet-connected computer.

• At [32], the Respondent provided supporting evidence from the State Records Commission of Western Australia that the creation and retention of records pertaining to a Councillor's activities was "at the discretion of the Local Government."
• At [34], in relation to e-mail storage, the Respondent argued that it strongly believed e-mails sent and received by councillors were the property of those councillors.
• At [37-38], the Information Commissioner partially rejected this belief and held regardless of any discretion afforded by a government records management policy, that e-mails for an officer (e.g. a current Councillor) fell within the definition of a "document of an agency" per the Glossary to the FOI Act.
• At [80]:

I consider that the agency's recordkeeping policy placed no obligation on either Councillor Sadler or former Councillor Sadler to retain documents of the kind sought by the complainant and, consequently, the decision to delete or dispose of those documents was made in accordance with the agency' policy..."

"All Reasonable Steps"

• At [81-82], the Information Commissioner made a clear distinction between the process of discovery and the FOI external review process:

[81] Nor do I agree with the complainant’s submission that the process of discovery during litigation before the courts is analogous to the process contained in s.26(1) of the FOI Act, which requires agencies to take all reasonable steps to find documents the subject of an access application. The litigation process before the courts is an adversarial process between the parties to that litigation and the courts have powers under the applicable Rules of Court to, amongst other things, order private citizens to give discovery of documents, including documents containing private information held on personal computers.

[82] By contrast, the external review processes set out in Part 4 of the FOI Act establish an independent, objective administrative review process in which the rules of discovery have no application. The Information Commissioner has no power under the FOI Act to order or direct an agency or a complainant to give the other party “discovery” of any documents. The discovery and inspection processes of the courts are not part of the FOI external review process because, among other things, section 70(2) of the FOI Act provides that proceedings under the FOI Act are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the FOI Act and a proper consideration of the matters before the Information Commissioner permit and that the Information Commissioner is not bound by rules of evidence.

• At [83], the Information Commissioner disregarded the Complainant's offer to pay for a computer forensic examination of the Councillors' personal computer:

I do not accept the complainant’s submissions that because the requested documents relate to a matter of interest to both the complainant and the community, and because he is willing to pay the costs of a forensic examination of Councillor Sadler’s home computer, such an examination should be conducted. The proper question for my determination is, rather, whether the requirement under s.26(1) for the agency to take ‘all reasonable steps’ to find the documents is satisfied without such an examination.

• At [88], the Information Commissioner upheld an earlier interpretation of "all reasonable steps":

The former Information Commissioner also said, in Re Boland and City of Melville [1996] WAICmr 53 at [27]:
“The agency is not required by the FOI Act to take every possible step to locate a document; it is required, rather, to take all reasonable steps.”

• At [96-100]:

[96] The complainant submits that I cannot properly find that all reasonable searches have been undertaken until such time as Councillor Sadler’s computer has been checked. The complainant’s submissions appear to be based upon the belief that a forensic search of Councillor Sadler’s computer will reveal information of the requested kind on the hard drive of that computer.

[97] In light of the searches and inquiries made by the agency; the fact that the agency was not required to retain the requested documents; and in the absence of any evidence that raises doubts as to the bona fides and veracity of the searches undertaken by Councillor Sadler and the agency, I am not persuaded that it is reasonable to require Councillor Sadler to produce his home computer to the agency or to me for the purpose of a forensic search by an information technology expert, in order to determine whether other documents exist.

[98] I consider the agency’s searches and inquiries to find the requested documents constitute ‘all reasonable steps’ in the circumstances of this case. In my view, requiring the agency to conduct a forensic examination of Councillor Sadler’s home computer is excessive and goes beyond the limit required by reason. In my view, where officers are authorised to delete electronic documents and do so, agencies should not be required as a matter of course to conduct searches for that electronic information from the hard drives of computers under the FOI Act.

[99] In my view, ‘all reasonable steps’ to find documents might include a forensic examination of an agency’s or councillor’s computer if there was evidence to suggest that electronic information had been deleted in order to prevent an agency from giving access to it. However, there is no information of that kind before me or any suggestion that s.110 of the FOI Act applies in this case.

[100] Having considered the submissions of the complainant; the advice of Councillor Sadler, former Councillor Sadler and the agency; the inquiries undertaken by my officers; and the recordkeeping obligations of the agency and its officers as they apply to documents of the requested kind, I consider that the agency has taken all reasonable steps to find the requested documents but that such documents do not exist or cannot be found.