Thursday, July 14, 2011

Councillors Right of Access to Information and Confidentiality

This blog post summarises the statutory right of access to information available to Councillors across the political spectrum in the UK. It is by no means exhaustive. I am by no means a legal expert! All Councillors should be aware of who is fulfilling the "Monitoring Officer" role at their Council and this is the best person to ask regarding access to information and confidentiality.

Hopefully this will be useful to Councillors (primarily opposition Councillors - of which I am one) across England.

(Of course if you are a member of the public and you want to know something then "asking a Councillor" might actually be useful!)

Executive Summary
Councillors have the right to access any information held by the Council to which they are a member. Some information may be labelled "Confidential" but if that information would be accessible under the Freedom of Information Act then the Councillor is freely able to publish the information.

A Councillors right of access to information held by the Council to which they belong is derived from statute and case-law as follows;

Applying specifically to Councillors;

  • S.100F LGA 1972 and the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000
  • The common law ‘Need to Know’

Applying to all UK citizens;

  • The Freedom of Information Act 2000 and EI Regulations
  • S.17 Local Government and Finance Act 1982

COMMENT/NOTES: The right of access is NOT the same as the right to publish or otherwise make public. It is perfectly possible for a Councillor to be aware of something that they are unable to make public.

It is vitally important that when Councillors agree to be bound by Confidentiality Clauses in order to gain access to information they also make clear under what conditions the Confidentiality Clause comes to an end (typically the public disclosure of the information by the County Council or a third party where the County Council has publicly responded or is preparing to publicly respond to such a disclosure). The last thing Councillors need is to be effectively gagged by a confidentiality agreement when the information is already public!

Detailed Report
The Right of a Councillor to access information is enshrined in the Local Government Act 1972, specifically (S.100(F) LGA 1972). This provides that any document held by the council containing material relating to any business to be transacted at any meeting of the council, committee or sub-committee must be available for inspection by any member of the council unless it is deemed by the proper officer to fall within certain categories of ‘exempt’ information (under Sched 12A), with the exception of para 3 (except to the extent that the information relates to proposed terms of a contract), and para 6.

Additionally there is a feature of Common Law called the ‘Need to Know’. Under common law principles members of authorities have the right to access information held by the authority where it is reasonably necessary to enable the member to properly perform their duties as a councillor (Ex p Hook 1980). The House of Lords coined the phrase ‘need to know’ in a case involving a councillor who asked for access to a social services adoption file in order to assist in making an informed decision on a housing matter. The HL found that
even though the councillor wasn’t a member of the social service committee they had established a bone fide need to know the information due to their role as a councillor.

In common with all citizens Councillors can also use the Freedom of information Act 2000 (FOI) and EI Regulations to access information. The General presumption is that information should be disclosed unless one of the exceptions contained in the act applies. The various exceptions include things such as legal privileged or commercially sensitive information.

Councillors have a statutory right to inspect any books, deeds, contracts, bills, vouchers and receipts prior to the annual audit (Section 17, Local Government Finance Act, 1982). They also have a right to inspect accounts and to take copies throughout the year (Section 228(3), Local Government Act, 1972).

Often adminstrations (of all political hues) will stamp the word "Confidential" on a document that for one reason or another they do not want to enter the public domain. Just because a document has the word "Confidential" on it it does not *always* mean that a Councillor in possession of the document is not able to make it public (of course some documents marked "Confidential" should remain confidential but it is based on the full content of the document, not just the use of the word Confidential!).

If the information is accessed using the FOI legislation, the information can be regarded as public i.e. the Councillor may share the information with others. In fact many Councils automatically disclose this information on their own websites.

However, if the Councillor has accessed information under the Common law 'Need to Know' power or under S.100F LGA 1972, in some cases the information will be 'confidential' in which case the Councillor will be bound by confidentiality.

In respect of information accessed under S.17 Loc Gov & Finance Act 1982, the position was considered recently by the Courts and the result is unclear and will depend upon the nature of the information.

If the Councillor accesses the information by any means other than FOI, they can check with the Monitoring Officer whether it is accessible by FOI. If the Monitoring Officer confirms that it is, then this supersedes any “confidential” markings on the papers, and the information can be used in public.

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