The Information Commissioner’s Office has opened an investigation into the practice following a complaint by a member of the public in April.
The watchdog’s involvement comes after the council commissioned law firm Bevan Brittan to investigate whether the attempted use of legal privilege to stop emails entering the public domain via Freedom of Information requests was applied properly.
The council has already admitted some emails were “incorrectly marked” in this manner.
A tranche of emails involving senior council officers about Operation Quito - a police operation which controversially saw dozens of officers sent out to support felling operations on a daily basis in early 2018 as protests grew - were made public in late 2019.
Several had been given the subject line ‘Covered by legal privilege and not subject to FOI’ and largely related the council’s involvement in a shared media strategy with South Yorkshire Police and a wish not to publicise it for fear of ‘politicising’ the force’s operation.
When it was revealed in May that Bevan Brittan had been appointed to look into the practice, the council issued a statement which included the sentence: “This matter has been looked at previously and submissions made to the Information Commissioner's Office who, at the time, were satisfied with the council’s response.”
Tree campaigner Justin Buxton put in an FoI request to the ICO asking for what information it held on this.
The ICO’s response said a senior case officer had a telephone conversation with a Sheffield Council representative in September 2020 as a “general enquiry” about the issue, which had been the subject of a complaint to the council.
The ICO case officer’s note of the conversation said: “Spoke to [Name Redacted] at SCC as a general enquiry about this case. He was aware of the request and says they have just responded to a further related request to the complainant.
“The heading on the disclosed emails is unfortunately worded, it was just to highlight that their content might be exempt [from FoI] under s42 – they later determined it wasn’t so the emails have been disclosed. The complainant has been advised regarding this as part of his later request.”
But the ICO response added a different complaint about the matter had been received by the ICO in April 2021. It said: “This complaint is still open and has not yet been investigated.”
Details of the complaint have not yet been made public but the ICO said it will publish its decision once its investigation is complete.
Sheffield Council are understood to have been contacted by the ICO about the complaint in May and asked to carry out an internal review. A response to the ICO was issued by the council on June 25.
That submission and the Bevan Brittan investigation are being treated as separate matters.
It has also been revealed a document discussed in one of the email chains marked ‘not subject to FoI’ has disappeared.
A council ‘options paper’ relating to Operation Quito, a controversial police operation in early 2018 which saw dozens of police and private security guards sent out to support felling operations in the face of growing protests, was discussed in a chain of emails whose recipients included then council leader Julie Dore.
One of the emails, sent by a person whose name is redacted in advance of the beginning of the operation, read “Meeting Julie again tomorrow. I’ll share my options paper - hard copy. P.”
A FoI request to see the document by Mr Buxton has been refused on the grounds that neither the council nor its highways contractor Amey, who ran the felling programme as part of a £2bn highways improvement contract, have been able to locate the paper.
The council’s response, provided in June - 18 months after Mr Buxton’s original request, said: “We have not been able to locate the Options paper. There are no attachments to the email. Assuming it was born digital, we have commissioned searches of shared drives and staff email accounts but have not been able to locate it. We have made enquiries with Amey Hallam Highways Ltd who were unable to conduct a full search due a complex IT security incident.”
A second response 10 days later added: “Amey have undertaken searches at our request and we are unable to identify with certainty what paper is being referred to.
“We do not have a trail to identify what the ‘options paper’ is. We also note that it is described in the original email as a hard copy.
“We note that the originator of the email who describes the ‘options paper’ is no longer employed by the council so it is not possible to clarify the matter further.”
Mr Buxton said the fact the paper is not available raises questions about a forthcoming inquiry into the handling of the saga and the council’s ‘Street Tree Archive’ project to publish information about what happened.
“The crux of this is really that it is evident that not all the relevant information will be available to establish a proper picture of what went on,” he said.
A Sheffield City Council spokesperson said: “We can confirm that Bevan Brittan are still investigating the use of legal privilege in emails by council officers and members, following a complaint received in March 2021 from a member of the public.
"They are currently conducting their independent interviews before reporting back to us and will have access to all the relevant information needed for their investigation.
“The council has a robust data retention policy, in line with legal, regulatory and business requirements, reflecting best practice records management and the requirements of data protection legislation.
"All documents and data supplied as part of the Street Tree Archiving project and subsequent Street Tree inquiry will be collected and presented comprehensively and in line with the appropriate guidance. We remain committed to working in an open and transparent way, adhering to the correct processes throughout.”