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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 12/07/2005
Access to Information



Summary & Purpose
The purpose of this report is to advise the Executive of a process being put in place to manage the difficulties being encountered because of the differences between exemptions from publication under Schedule 12A of the Local Government Act 1972 and the Freedom of Information Act 2000 pending the Government introducing legislation to bring together the exemptions in the two sets of legislation.

Quality of Life Implications
Natural Resource Use
Pollution Prevention and Control
Biodiversity and Nature
Local Environment
Social Inclusion
Safe Communities
Local Economy
Natural
Resource Use
Pollution
Prevention and Control
Biodiversity
and Nature
Local
Environment
Social
Inclusion
Safe, Healthy
and Active
Communities
Local
Economy
N/A
N/A
N/A
N/A
Positive
Positive
N/A


APPENDIX J
WAVERLEY BOROUGH COUNCIL

EXECUTIVE – 12th July 2005

Title:
Access to Information

[Wards Affected: N/A]
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Summary and purpose:

The purpose of this report is to advise the Executive of a process being put in place to manage the difficulties being encountered because of the differences between exemptions from publication under Schedule 12A of the Local Government Act 1972 and the Freedom of Information Act 2000 pending the Government introducing legislation to bring together the exemptions in the two sets of legislation.

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Quality of life implications – social, environmental & economic (sustainable development):

E-Government implications:

Along with E-Government, the Freedom of Information Act is another step to make Waverley, and all public authorities, more accountable to the community.

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, exempt items contained in committee reports under Schedule 12A of the Local Government Act 1972 (as amended) are agreed by each committee or at Full Council following officer recommendations. Difficulty has been encountered where a Committee or the Council has agreed an item as exempt and then, following the meeting, it has become categorised as an ‘open’ document under the Freedom of Information Act. The Government has stated that it is intending to revise Schedule 12A to fall in line with the Freedom of Information exemptions. This is still awaited.

2. The Council aspires to be as open and accountable as possible and it is, therefore, proposed to put into place a process which ensures that the public interest element introduced by the Freedom of Information Act applies wherever possible to exempt items on agendas.

Current Situation

3. Members will be familiar with the reasons provided in Schedule 12A of the 1972 Act giving 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 (Schedule 12A, para 1) or any particular applicant for Council accommodation (para 3). 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. Some are of 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. 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. If, after the Committee/Council meeting, a member of the public then requests information contained in the exempt report, such a request will be deemed to be made under the Freedom of Information Act and the requirements of that Act apply, which introduces different exemptions and a public interest test. The Freedom of Information Act exemptions differ from the Schedule 12A exemptions in that some are absolute, so that information need never be disclosed; 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. The FOI exemptions are more specific than the Schedule 12A exemptions and as a consequence, in practice, more information should be available under the Freedom of Information Act.

6. Given that once reports are considered to be exempt under Schedule 12A of the 1972 Act, only the relevant committee or the Council can override that exemption. It presents a difficult position when Freedom of Information requests cannot be complied with within the statutory time limits if a Committee or Council decision is required.

The Way Forward

7. To overcome the problems, it is proposed that, wherever possible, the Freedom of Information Act criteria should be applied to any ‘exempt’ items at Committee or Council from the outset thereby applying the highest test before papers go to Committee.

8. 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 providing information within 20 days of the request, there will need to be a process to override the committee or Council’s decision regarding an exempt item.

9. It is proposed that this can be best achieved by the Monitoring officer being delegated to authorise the disclosure of the information should it be requested and the disclosure be 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.

10. A flow chart of the process is shown at Annexe A of this report.

Recommendation

It is recommended that the Executive

1. endorses the action that needs to be taken to ensure that the Council can comply with its statutory obligations; and

2. gives delegated authority to the Monitoring Officer to authorise the release of those parts of exempt committee reports that fall under Schedule 12A of the Local Government Act 1972 (as amended) but subsequently become appropriate for disclosure under the Freedom of Information Act 2000.

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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: Peter Driscoll Telephone: 01483 523477

E-mail: pdriscoll@waverley.gov.uk

Anne Bott Telephone: 01483 523415

E-mail abott@waverley.gov.uk

Comms/Executive/2005-06/053