The "dismay" expressed by former Mid and East Antrim Council chief Anne Donaghy that a copy of an email she wanted deleted had been "sent upstairs" in an audio recording points to her intention, a court has heard.
However in closing arguments put to Ballymena Magistrates' Court following a two-day trial, Donaghy's defence barrister Michael Chambers KC argued that there were "multiple points of reasonable doubt" in the prosecution's case.
Charges and Background
Donaghy, 56, of Clonmore Road, Dungannon, has been charged with deleting an email and having attempted to delete an email to prevent the disclosure of information through the Freedom of Information Act, as well as procuring the deletion of an email.
The former director of corporate services at the council, Aaron McClelland, 49, of Clonmakate Road, Portadown, has been charged with one count of having attempted to delete an email.
They both deny the charges which centre around the deletion of an email to former first minister Arlene Foster, and the attempted deletion of another. These emails were the forwarding of Donaghy's letter to the UK Cabinet Office to a number of DUP politicians.
Prosecution Case
The prosecution outlined that Donaghy had been advised by DUP MPs to write to the Cabinet Office to outline her concerns about the impact of the NI Protocol, and "sinister graffiti" at Larne Port threatening staff carrying out inspections at the border post.
After writing the letter, Donaghy had her assistants forward it to MPs Ian Paisley, Sammy Wilson and Jeffrey Donaldson, as well as then-agriculture minister Edwin Poots and economy minister Gordon Lyons on February 1, and later to Gregg McKeen, the DUP leader on the council, and representative for Larne Lough, as well as mayor Peter Johnston and Ms Foster on February 2.
On February 8, the council received a Freedom of Information (FOI) request from a journalist asking for copies of letters sent to the UK Government about the NI Protocol and alleged threats to staff. This was refused on the basis of health and safety, and security.
In April, Donaghy appeared before the Stormont Agriculture, Environment and Rural Affairs Committee, where she was questioned by Alliance MLA John Blair about her letter to the Cabinet Office, and why she had sought the views of DUP representatives, but not those of others parties.
In the same month, the council received another FOI request for emails concerning the NI Protocol, and in May a second FOI request from the journalist who previously made the request which was refused.
The prosecution said that by the end of April, there was "increasing political and media scrutiny", and also described how Donaghy was concerned that she was being perceived as "the DUP's person".
In June, a TUV delegation had a meeting with Donaghy over the letter to the Cabinet Office, and Timothy Gaston was described as inquiring why it was "only sent to members of the DUP".
Evidence and Defence
On Monday, the court heard from two of Donaghy's former personal assistants, one who had deleted the email to Ms Foster, and the second who had refused to delete an email to another person.
Donaghy said in her police interviews that she was concerned about Ms Foster's personal email address getting into the public domain, as there had been an issue with information being leaked from the council.
The court heard she accepted during her police interviews that she had asked one of her personal assistants to delete the email to Ms Foster, but said a hard copy of it had been kept. McClelland also maintained that hard copies of the emails had been kept by him in a locked cabinet.
Giving evidence to court on Tuesday morning, policy manager Paul Thompson described attending a meeting of Donaghy's house on Sunday June 27 where he was asked his opinion around the email being deleted. "I guess at that time, I was the person who had the most knowledge of the FOI Act," he said.
Later Judge Alana McSorley dismissed a no case to answer application by Mr Chambers before hearing closing arguments.
Summing up, the prosecution pointed to evidence heard on Monday from an audio recording taken on a pen belonging to Donaghy's assistant, during which the chief executive asked her to delete the email to Ms Foster. Told that "upstairs", with reference to the FOI team in the council, had a copy of the email of Ms Foster, Donaghy is heard saying: "Oh no. Who sent that?"
The prosecution described Donaghy as reacting "in dismay", and argued she had not known that a hard copy of the email had been kept. They also described a reference to a council policy that emails could be deleted if a printed out copy was kept as a "fig leaf in retrospect", questioning whether there had been a "blanket policy of printing out".
"The overwhelming inference is when she went to make that request she did not know about the hard copy and hoped to suppress this from being released," they said.
Mr Chambers responded describing the evidence against his client as "circumstantial", and said there were a number of points of reasonable doubt. He said these included the fact that on the date Donaghy asked for the email to Ms Foster to be deleted there was no live FOI request, adding: "So how can you delete an email to frustrate an FOI request if there is not an FOI request live at the time."
He also contended there is "not a shred of evidence" that Donaghy did not know there was a hard copy of the email.
In terms of the recording, Mr Chambers said Donaghy's assistant had conceded her reference to "upstairs" had been confusing as to whether that could be seen as referring to the FOI team or the communications office amid fears around leaks, and ensuring Ms Foster's personal email address was not put into the public domain.
He also said while the prosecution contended Donaghy wanted to distance herself from the DUP, he asked why she would have only wanted to delete one email to Ms Foster and not also the others to DUP representatives.
Meanwhile, barrister Eoghan McCarthy, acting for McClelland, also contended the prosecution had "failed to prove its case". He said while McClelland had asked another one of Donaghy's personal assistants to delete a second email, she had refused, and he had not repeated his request or pressed it, adding he had kept hard copies of all the emails in a locked cabinet.
Judge McSorley is expected to give her judgment in the case on Wednesday afternoon.
