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WALC approached the NALC legal team about a tension that we had become aware of between the legislation covering General Data Protection Regulation and Freedom of Information. we consulted about the following scenario:

If at the start of the meeting the Chair states that the meeting is being recorded for the purpose of the clerk taking minutes and that it will be destroyed as soon as the minutes have been approved (which would comply with GDPR requirements) but between the two meetings a person puts an FOI request in to have a copy of that recording, can that be released?

Our concerns would be that this copy of the recording would not be used for the stated purpose and there would be no way of ensuring that it was destroyed at the stated time.  Would those be legitimate reasons for refusing to comply with the FOI request.

NALC have responded with the following information: -

I have linked below to a case involving the prosecution of a clerk for deleting information (a recording of a meeting) further to an FOI request. I believe she said she was relying on it for minute preparation purposes and deleted it once they had been produced in line with the council’s policy. The message from the case would be to not delete relevant information further to an FOI request being made, which goes without saying.

In terms of the validity of refusing requests, it’s ultimately a question for the ICO to determine if a requester challenges a refusal and not for us in NALC Legal. Should a council refuse a request (e.g. relying on the s.22 of the FOIA 200 exemption that the information is intended for future publication – in the minutes as the lawful record of the meeting) and the requester complains to the ICO, I do not know what the ICO’s view would be and whether they  would take the view that a recording wouldn’t be the same information as the minutes.

https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2020/03/council-employee-fined-400-for-illegally-deleted-audio-file/

This gives a very clear message that you must not delete a council recording after receiving a Freedom of Information request.

The separate question about whether you can refuse to release a recording that has been requested under FOI is still unclear.  If you find yourself in this situation you should consult with the experts at the Information Commissioners Office but do not delete this recording without a clear steer from them.