When an elected councillor of a local government uses his or her private email to create or respond to a council business matter (e.g. a recommendation to waive an animal infringement fine), is that email considered a public record?
Our legal advice is that local government councillors are not public officers within the meaning of the Public Records Act as they are not ‘a person employed in a public office’. Consequently the records that they send or receive are not public records. (Public Records Act s2) In this case councillors are in a similar legal position to ministers of the crown.
While this may be a weakness in the Act, it could also be argued that while a councillor can make a recommendation or decision, they cannot act on this themselves. For council to act, the councillor needs to communicate this recommendation or decision to a council officer. This communication, when received by a council officer, is a public record. In your example, the council would keep a record of the councillor’s instruction or recommendation to waive an animal infringement fine. The email sent by a councillor is not a public record, but the same email received by a council employee is a public record.
From a policy perspective, the main weakness of this legal framework is that no public record is made of the reason for the recommendation or decision. This could be an issue when investigating corrupt practices within a council. We would normally recommend to a councillor that they should keep adequate records to demonstrate their probity and integrity. The only grey area is where a councillor uses council facilities to send and receive communications (e.g. a council email system). However, this would still not involve a person employed in a public office in sending or receiving the communication, so the email would still not be a public record.