Summary and purpose:
The purpose of this report is to advise the Executive of changes to Schedule 12A of the Local Government Act 1972, introduced by the Local Government (Access to Information) (Variation) Order (the Variation Order) which governs the basis on which reports may be disclosed to the public or be exempt from publication.
Environmental and Social / community implications:
There are no environmental implications, but open government is an important part of the Council’s policies for involving the community and making decisions in a transparent way.
With use of IT and access through the website, a wider range of information may be available to the public in future.
Resource and legal implications:
The work has mainly been contained within existing resources. However, there will be cost implications for a further step in the administration of the reporting system.
The work will be undertaken by the “authors” of reports (“the proper officer” in each case), the Monitoring Officer, and the Information Rights Officer who will have to be consulted regarding Freedom of Information exemptions.
Introduction and Background
1. Currently report items which are to be exempt from disclosure under Schedule 12A of the Local Government Act 1972 are agreed by each committee or Full Council following officer recommendations. The Government has revised Schedule 12A to fall in line with the Freedom of Information exemptions, in particular, by providing for consideration of where the public interest lies in making disclosure or retaining confidentiality.
2. Members will be familiar with the reasons that have provided, in Schedule 12A of the 1972 Act, for exemption from access to the information. For example, the Council may decide that the public should not have access to information relating to a particular employee or any particular applicant for Council accommodation. Some of the exemptions protect individual human rights; others, for example, exemption of terms of contracts under negotiation, or legal advice, protect the effectiveness of the Council as a corporate business organisation acting in the public interest.
3. Some of the exemptions have permanent effect, others (for example, non-disclosure of intention to serve enforcement notices) may last only so long as they protect the effectiveness of action, and finish when that action has been taken (these are referred to as “qualified exemptions”). The purpose of the Access provisions under the 1972 Act generally is to make it possible for the public to know the underlying information that members consider when making decisions on behalf of the public.
4. The Freedom of Information Act exemptions have differed from the Schedule 12A exemptions in that some are absolute, so that information need never be disclosed; whilst others are qualified exemptions, and may be disclosed subject to the “public interest test”. Many of those relevant to the Council carry a “public interest test”, that is, we have to ask the question under the Freedom of Information Act “Is it in the public interest to disclose the information, or is it in the public interest to continue to withhold it?”.
5. There will be occasions when items must be “in exempt” for a period of time, (e.g. until a contract is let) but not remain so indefinitely. The period of time could range from 1 day to several years. To meet the requirements of the Freedom of Information Act in providing information within 20 days of the request, in June 2005 Council agreed a delegation to the Monitoring officer to allow her to authorize the disclosure of the information where appropriate in response to a Freedom of Information request made at a later date. This will be carried out in consultation with the Information Rights Officer and the author of the report. The Monitoring Officer is the “Responsible Officer” for authorising Section 36 Exemptions (Prejudice to effective conduct of public affairs) under the Freedom of Information Act
6. The Variation Order substitutes a new Schedule 12A, replacing some of the descriptions of exempt information with new text, which it is intended will be simpler and clearer. Some of the earlier provisions “qualifying” exemptions, so that they may not be permanent, are replaced by a public interest test.
Changes in 2006: Access for Members
7. Amendments are also made to provide additional rights of access to documents for members of the Council. These are rights that are exclusively reserved for members of the Council, and do not have any effect on the rights of the general public to access to documents.
8. Under the earlier provisions (although it was not common practice in Waverley) the proper officer was not required to disclose to members specified “exempt” classes of information, (for example, information relating to a particular employee), including members of the relevant committees, except on a need to know basis. [Members are regarded as having a “need to know” where knowledge of the contents will support them in performing their duties as councillors effectively]
9. The Local Authorities (Executive Arrangements) (Access to Information) (Amendment) (England) Regulations 2006 extend the effect of the Variation Order to Councils with Executive arrangements.
Changes in 2006: General access to reports of the Council
10. The Variation Order also revises the categories of papers that may be exempt from disclosure. It will be necessary for officers preparing reports, and for members, to become familiar with the new categories in the revised Schedule 12A. Annexe 1 to this report lists the new exemptions introduced by the Variation Order.
Changes in 2006: Standards Committees
11. Simultaneously with the Variation Order, the Government has issued the Relevant Authorities (Standards Committee) Amendment Regulations 2006 to make changes for access to information received by the Standards Committee to reflect the changes to the Variation Order. The effects are also shown in Annexe 1
It is recommended that:
1. the Executive notes the effects of the Variation Order on access to the papers for members of the Council and for the public; and
2. the Executive recommends to Council that the appropriate amendments be made to the Constitutional provisions for access to information.
Background Papers (CEx)
There are no background papers (as defined by Section 100D(5) of the Local Government Act 1972) relating to this report.
Name: Sara Whitmarsh Telephone: 01483 523176