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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 07/03/2006
Access to Information



APPENDIX H
WAVERLEY BOROUGH COUNCIL

EXECUTIVE – 7TH MARCH 2006

Title:
ACCESS TO INFORMATION
[Wards Affected: All]
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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.

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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.

E-Government implications:

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.

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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]

where it relates to the financial or business affairs of any particular person (including the authority holding that information) except to the extent that it relates to proposals in the course of negotiations for a contract,
where it discloses that the Council is going to give notice imposing requirements on a person (e.g. a noise abatement notice) or to make an order or direction (e.g. an Article 4 Direction restricting permitted development rights).

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

Recommendation

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.

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Background Papers (CEx)

There are no background papers (as defined by Section 100D(5) of the Local Government Act 1972) relating to this report.
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CONTACT OFFICER:

Name: Sara Whitmarsh Telephone: 01483 523176
E-mail: swhitmarsh@waverley.gov.uk







comms\executive\2005-06\307.doc




ANNEXE 1


LOCAL GOVERNMENT ACT 1972 SCHEDULE 12A


PART I: DESCRIPTIONS OF EXEMPT INFORMATION

1. Information relating to any individual.

2. Information which is likely to reveal the identity of an individual.

3. Information relating to the financial or business affairs of any particular person (including the authority holding that information).

4. Information relating to any consultations or negotiations, or contemplated consultations or negotiations, in connection with an labour relations matter arising between the authority or a Minister of the Crown and employees of, or office holders under, the authority.

5. Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

6. Information which reveals that the authority proposes (a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or (b) to make an order or direction under any enactment.

7. Information relating to any action taken or to be taken in connection with the prevention, investigation or prosecution of crime. *

Paragraphs 1 and 2 are a briefer and more comprehensive replacement for paragraphs 1 to 6 and 15 of the previous Schedule 12A
Paragraph 3 conflates the previous paragraphs 7,8,9 and 10
Paragraph 4 replaces the previous paragraph 11
Paragraph 5 replaces the previous paragraph 12
Paragraph 6 replaces the previous paragraph 13
Paragraph 7 replaces the previous paragraph 14

PART II: QUALIFICATIONS

8. Information falling within paragraph 3 is not exempt if it is information that is required to be registered under the Companies Act 1985, The Friendly Societies Acts 1974 and 1992, the industrial and Provident Societies Acts 1965 to 1978, The Building Societies Act 1986, or the Charities Act 1993. 9. Information is not exempt information if it relates to proposed development for which the Council, as local planning authority, may grant itself planning permission pursuant to regulation 3 of the Town and Country Planning General regulations 1992

10. Information which is otherwise exempt by virtue of paragraphs 1 to 7 above, and is not prevented from being exempt by one of the qualifications in paragraphs 8 and 9, may be exempt “if and so long, as in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”.

Paragraph 10 reinforces the need for the proper officer responsible for the report to balance the ”public interest” in maintaining exemption from publication against the public interest in having the information disclosed. It has been the practice of the Council to disclose as much material as is reasonable without risk of harm to the public interest, in the interests of open and transparent local government. In this context, the public interest in having information disclosed or in it remaining exempt, is distinct from any acknowledged general interest of individual members of the public in the subject matter of the information.

STANDARDS COMMITTEE

*For the Standards Committee the additional paragraphs are to be read as if inserted following paragraph 7

7A. Information which is subject to any obligation of confidentiality

7B Information which relates in any way to matters concerning national security

7C The deliberations of a standards committee or of a sub-committee of a standards committee in reaching any finding on a matter referred to that Committee comms\executive\2005-06\307.doc