Text messages sent by Cr Michael Laws
Alex Harris made this Official Information request to Whanganui District Council
The request was partially successful.
From: Alex Harris
Dear Wanganui District Council,
I would like to request the following information under LGOIMA:
* Does Cr Michael Laws have a council-issued cellphone? if not, does he use his own cellphone for council business?
* All text messages relating to council business or sent or received in an official capacity sent or received on 28 September 2012 from Cr Michael Laws' phone
To assist in your decision-making
* information held by a member of a local authority in their capacity as a member are held by that local authority (LGOIMA s2(3))
* text messages relating to council business or sent in an official capacity are therefore "official information" held by the council, and subject to request. Text messages sent in a private capacity are not official information, and are not subject to this request
* The time period of this request has been limited specifically to ensure it cannot be refused on the grounds of substantial collation and research (s17(f)). I expect it to cover only a handful of messages, or maybe none at all, depending on Cr laws' useage patterns.
* obviously, where messages would compromise the interests protected by s7 LGOIMA, and the interest in witholding is not outweighed by the public interest, those messages can be redacted or withheld in full. I expect the names and phone numbers of senders and recipients to be withheld under s7(2)(a), unless they are councillors or the Chief Executive (in which case only phone numbers should be withheld).
I would prefer to receive an electronic response. Queries about this request will be automatically forwarded to me by the fyi.org.nz website.
With regards to s12 of the OIA, I am an NZ citizen and in NZ.
Yours faithfully,
Alex Harris
From: Anne Couper
Good Morning Alex
Thank you for your email. I have forwarded your request onto Paul Drake our Legal Officer, who will in turn respond to your query.
Regards
Anne
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From: Paul Drake
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Good Afternoon Alex
In my opinion your request:
All text messages relating to council business or sent or received in an
official capacity sent or received on 28 September 2012 from Cr Michael
Laws' phone
is not made with 'due particularity.
Please be more specific as to the topic of the text message(s).
Regards
Paul
Paul Drake
Legal Officer
Legal Services
Wanganui District Council
06 349 0001
06 349 0000
[email address]
Http://www.wanganui.govt.nz
101 Guyton Street
PO Box 637
Wanganui 4500
New Zealand
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From: Alex Harris
Dear Paul Drake,
I'd like to point you at s11(b) of LGOIMA. If you believe a request has not been made with "due particularity", then you have a legal duty to give reasonable assistance to the requester to frame it so that it can be accepted.
In this case, which part of the request lacks "due particularity"? I've identified the target of the request: text messages which constitute official information (in that they were sent or received in an official capacity) on Cr Michael Laws' phone. I've identified the scope: a particular date. If you believe that this is _not_ particular enough, then I'd like you to tell me how it could be made so.
Alternatively, I am happy enough to go to the Ombudsman over this, and from my reading of practice guidelines and case notes, they will back me (particularly in light of an initial response so redolent of bad faith). Please let me know which approach you would prefer.
Yours sincerely,
Alex Harris
From: Paul Drake
Good Morning/Afternoon
I am currently out of the Office. I will be returning to work on Thursday 4/10. I am contactable on cell; 027 212 0633.
Regards
Paul Drake
Legal Officer
Tim Hope left an annotation ()
60 The Ombudsmen have said that the requirement of due particularity does not preclude a person asking whether an agency holds any information on a specified topic nor from requesting access to all information held in relation to that topic. Their 1995 Annual Report states that “a request meets the test of ‘due particularity’ if the information covered by the request can be identified by the recipient”.61 It follows that:
Lack of particularity cannot, therefore, be used as a means for refusing a request which is for a large amount of specified information. Where such a request is made, the legislation provides appropriate procedures for dealing with it, including provision for a charge to be made, extensions of the time limit, and refusal in an appropriate case where the information requested cannot be made available without substantial collation or research.62
I would quote that...from here:
http://www.nzlii.org/nz/other/nzlc/repor...
From: Paul Drake
Good Afternoon Alex
Acknowledgement of Request
Council acknowledges your request dated and received by Council on 28 September 2012 made under the Local Government Official Information and Meetings Act 1987 ("the Act").
Legislation governing request: Local Government Official Information and Meetings Act 1987
Decision on the Request
Section 13 of the Act governs Council's decision on the request.
Council shall, as soon as reasonably practicable, and in no case later than 20 working days after the day on which the request is received,
(a) Decide whether the request is to be granted and, if it is to be granted, in what manner and for what charge (if any); and
(b) Give or post to the person who made the request notice of the decision on the request.
The 20 working days has been calculated as being no later than 29 October 2012.
Reasonable Charge
Council is permitted to make a reasonable charge for the cost of the staff time and materials involved in making the information available and for any costs incurred pursuant to a request of the applicant to make the information available urgently.
Council generally provides the first 30 minutes of staff time at no cost (on frequent requests the charging for staff time will be assessed on a case by case basis). Materials; e.g. photocopying, may be charged on any information request depending on the quantity of materials involved in providing the information.
Council has adopted the Ministry of Justice rate of $38.00 (incl. of GST) per half hour in addition to administrative costs and photocopying costs.
Council will advise you prior to processing the request if a charge will be incurred.
Contact Person
If you have any queries in relation to this matter please contact the writer.
Kind Regards
Paul Drake
Legal OfficerPaul Drake
Legal Officer
Legal Services
Wanganui District Council
06 349 0001
FAX: 06 349 0000
[email address]
Http://www.wanganui.govt.nz
101 Guyton Street
PO Box 637
Wanganui 4500
New Zealand
CAUTION: This correspondence is confidential and intended for the named
recipient(s) only. If you are not the named recipient and receive this
correspondence in error, you must not copy, distribute or take an action
in reliance on it and you should delete it from your system and notify
the sender immediately. Unless otherwise stated, any views or opinions
expressed are solely those of the author, and do not represent those
of the organisation.
From: Paul Drake
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Good Afternoon Alex
At the Council Meeting of 23 October 2012 the Councillors will be up-dated
on the number and type of LGOIMA requests currently being processed by the
Council. The report is in the public excluded portion of the meeting.
Can you please advise whether you have any objection to your name being
contained in that report.
If you do object then Council will remove your name but still report the
request.
Regards
Paul
Paul Drake
Legal Officer
Legal Services
Wanganui District Council
06 349 0001
06 349 0000
[email address]
Http://www.wanganui.govt.nz
101 Guyton Street
PO Box 637
Wanganui 4500
New Zealand
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From: Alex Harris
Dear Paul Drake,
I have no objection to my name being in the report.
Yours sincerely,
Alex Harris
From: Alex Harris
Dear Paul Drake,
I note that my OIA request seeking further information regarding Cr Michael laws' text messages is now overdue. In your response of 9 October, you stated that a response would be sent by 29 October 2012. Will I be receiving a response soon, or will I have to go to the Ombudsman on this?
Yours sincerely,
Alex Harris
From: Paul Drake
Good Afternoon Alex
Please find attached Council's response to your Information request.
Regards
Paul Drake
Paul Drake
Legal Officer
Legal Services
Wanganui District Council
[T] 06 349 0001
[F] 06 349 0000
[M]
[W] www.wanganui.govt.nz
[Address] 101 Guyton Street
PO Box 637
Wanganui 4500
New Zealand
Wanganui -NZ's first Intelligent Community
[Smart 21]
<http://www.wanganui.govt.nz/News/showNew...>
[Wanganui District Council]
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Mike McGavin left an annotation ()
Maybe an ombudsman candidate, on the grounds that at least his work-related text messages should be covered?
It's a blurry line, but I would have thought that text messages which are work related would definitely be covered. When working in a government department, we were required to file anything work related except trivial stuff, but they didn't care about personal stuff. ie. If you were using a work PC to write a private email via GMail, it wouldn't be considered a record, but work-related communications would. Probably work-related communications that weren't using work equipment would also be covered (given all employees are meant to comply with the OIA), but without tough policies on employees using only work equipment for work purposes (which exist in many parts of government for exactly this reason) it'd be tougher to nail down those records if people were trying to hide through those sorts of means, or just being lazy or ignorant about the law.
jessica fathom left an annotation ()
How did that response get past internal peer-review?
I have seen many responses, some good, some bad, but that response and their handling of the request is atrocious. Very amateur.
Joshua Grainger left an annotation ()
They merely state that text messages aren't covered by the LGOIMA, without providing any reasons. Such a duplicitous response is intellectually dishonest at best, and just plain stupid at worst.
The Ombudsmen has made it perfectly clear that information that is just held in someone's mind is official information: see OQR 1-4 and 4-3. If such information can be official information, then why on earth would not information on a cellphone be official information? Indeed, the Law Commission in their press release when they started their consultation regarded text messages as Official Information.
Indeed in their response they state reasons why messages are withheld, and then they state that they cannot retrieve the messages. Surely it would be one or the other? Afterall, you can't be sure that the content of messages needs to be withheld for free and frank disclosure unless you know what the content of the messages actually is.
Joshua Grainger left an annotation ()
Another thing to note is that the Deputy Ombudsmen explicitly refers to Cr Michael Laws comments in his speech to SOLOGM: http://www.ombudsman.parliament.nz/ckedi...
They confirm that "yes, text messages sent by a councillor or staff member in their capacity as a councillor or staff member will also be “official information” for the purposes of the Act."
Mike McGavin left an annotation ()
I take it that this means if Michael Laws (or anyone) deletes significant work-related text messages from their phone as a matter of course without storing it elsewhere for archival purposes, maliciously or not, they'd very possibly be breaking Section 17 of the Public Records Act?
From: Alex Harris
Dear Paul Drake,
Thankyou for your response. You may wish to read this speech by Deputy Ombudsman Leo Donnelly in which he makes it clear that emails and text messages sent in an official capacity _are_ "official information"
http://www.ombudsman.parliament.nz/newsr...
As for your other withholding grounds, these must be applied on a message-by-message basis, not a blanket one. LGOIMA, like the OIA, does not exempt classes of documents.
In terms of extracting the messages, you've missed an obvious posisbility: get someone to write them down.
I've filed a complaint with the Ombudsman, and I expect you'll be hearing from them soon.
Yours sincerely,
Alex Harris
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Gavin Millar left an annotation ()
The statement that a request for a single day of text messages that relates Cr Michael Laws position within Whanganui District Council is absolutely absurd.
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