AGENDA ITEM NO. 4
REPORT TO:
Standards Committee
REPORT NO:
CLAO/48/05
DATE:
8 September 2005
LEAD OFFICER:
Chief Legal and Administration Officer/
Monitoring Officer
CONTACT OFFICER:
Debbie Pennington, Solicitor (Ext. 2234)
SUBJECT:
Access to Information
WARD:
N/A
1.
PURPOSE OF THE REPORT
1.1
To inform Members of the imminent amendment to Access to Information Legislation.
2.
INFORMATION
2.1
At its meeting on the 2 December 2004, the Committee considered Report no. CLAO/80/04
which informed Members of a consultation by the National Assembly for Wales on proposed
changes to Schedule 12A to the Local Government Act 1972. This Schedule specifies
categories of information which may be regarded as “exempt”, and thus considered in private
session in meetings of Council, its committees, sub-committees and the Executive Board.
The National Assembly for Wales were proposing changes in order to ensure that the
exemptions contained in Schedule 12A were in line with the exemptions contained in the
Freedom of Information Act 2000.
2.2
The Local Government (Access to Information) (Variation) (Wales) Order 2005 (“the
Order”) has now been issued in draft form by the National Assembly for Wales and is
expected to come into force on the 30 September 2005. The Order reduces the grounds on
which information may be treated as exempt from 15 to 7 and introduces a public interest test
to all but one of the new grounds.
2.3
Attached at Appendix 1 of this report is a draft Briefing Note to Members and Officers
explaining the changes to Schedule 12A introduced by the Order, the new categories of
exempt information and guidance on application of the public interest test. It is intended that
the Briefing Note will be issued to Members and Officers shortly in order to make practical
preparations for the change in procedures. However, the Briefing Note is subject to
amendment if the Order differs in its final format. Further, the Access to Information Rules
in the Constitution will also require amendment to reflect the Order.
2.4
2
The original consultation by the National Assembly for Wales suggested that additional
categories of exempt information for items considered by Standards Committees should be
included in any amendment to Schedule 12A. This would have allowed Standards
Committees to meet in private to consider, for example, allegations of misconduct against
Members. However, such changes are not included in this Order. It is understood that this
issue will be considered again by the National Assembly for Wales in its review of the
Standards Committees (Wales) Regulations 2001 later this year.
3
RECOMMENDATION
3.1
That Members note the contents of this report and the draft Briefing Note contained in
Appendix 1.
4.
BACKGROUND PAPERS
4.1
The draft Local Government (Access to Information) (Variation) (Wales) Order 2005.
5
WEBSITE INFORMATION
None
DP/LMK/CLAO4805
3
APPENDIX 1
DRAFT BRIEFING NOTE FOR MEMBERS AND OFFICERS
AMENDMENT TO CATEGORIES OF EXEMPT INFORMATION
(SCHEDULE 12A TO THE LOCAL GOVERNMENT ACT 1972)
1
Introduction
1.1
Schedule 12A to the Local Government Act 1972 contained 15 grounds on which
information contained in reports to meetings of Council, committees, sub-committees and
Executive Board may be exempt from the requirements to make reports public. Where the
meeting passes the appropriate resolution, the public may be excluded during consideration
of reports which contain information of a type specified in Schedule 12A.
1.2
The Freedom of Information Act 2000 came fully into force on the 1 January 2005, and gives
the public the right to obtain information from the Council, subject to exemptions. However
these exemptions differ from the grounds under Schedule 12A referred to above. This means
that whilst information in a report may be excluded from publication during the process of
being considered at meetings, it may be available through the Freedom of Information Act.
1.3
In pursuance of the Government’s aim to make all tiers of government more open and
accessible, Schedule 12A is to be amended so that the categories of information which are
exempt from publication during Council meetings reflect the categories of information which
are exempt from disclosure under the Freedom of Information Act. In addition there will also
be a new requirement to consider whether it is in the public interest to treat information as
exempt from publication.
1.4
The Local Government (Access to Information) (Variation) (Wales) Order 2005 (“The
Order”) will shortly be passed by the National Assembly for Wales. Separate regulations
apply in England.
This Order is expected to come into force on the 30 September 2005. Therefore, from that
date onwards, only reports which contain information as set out in paragraph 2 below are
exempt from publication.
1.5
The Order introduces new Parts 4, 5 and 6 to Schedule 12A in relation to Wales. Part 4
contains the new categories of exempt information to replace the existing grounds (as
referred to in paragraph 1.1 above). Paragraph Part 5 contains qualifications to these
categories (see paragraph 3). Part 6 contains the same definitions as currently contained in
Schedule 12A except that “labour relations matter” means any of the matters specified in
paragraphs (a) to (c) of section 218(1) of the Trade Union and Labour Relations
(Consolidation) Act 1992.
4
2
New Categories of Exempt Information
The new categories of exempt information for Wales, to be inserted as Part 4 of Schedule
12A, are as follows:“12
Information relating to a particular individual.
13
Information which is likely to reveal the identity of an individual.
14
Information relating to the financial or business affairs of any particular person
(including the Authority holding that information).
15
Information relating to any consultations or negotiations, or contemplated
consultations or negotiations, in connection with any labour relations matters
arising between the Authority or a Minister of the Crown and employees of, or
office holders under, the Authority.
16
Information in respect of which a claim to legal professional privilege could be
maintained in legal proceedings.
17
Information which reveals that the Authority proposes:-
18
(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
Information relating to any action taken or to be taken in connection with the
prevention, investigation or prosecution of crime.”
The above paragraph numbering is prescribed by the Order, paragraphs 1 to 11 relate only
to England.
3
The Public Interest Test and Other Conditions
3.1
Part 5 of the Order contains qualifications on the circumstances in which information may be
treated as exempt. This contains a new requirement which requires application of a public
interest test to all of the new categories of information, with the exception of paragraph 16.
This means that where information falls within one of the categories listed as paragraph 12 to
15, 17 and 18, it may only be treated as exempt from publication if, in all the circumstances
of the case, the public interest in treating the information as exempt, outweighs the public
interest in making the information public.
3.2
Part 5 also reproduces some of the qualifications contained in the existing Schedule 12A.
These are:3.2.1 Information falling under paragraph 14 is not exempt if it is required to be registered
under the Companies Act 1985, the Friendly Societies Act 1974, the Friendly
Societies Act 1992, the Industrial and Provident Societies Acts 1965 to 1978, the
Building Societies Act 1986 or the Charities Act 1993.
5
3.2.2 Information is not exempt if it relates to proposed development for which the Council
may grant itself planning permission pursuant to Regulation 3 of the Town and
Country Planning General Regulations 1992.
4
New Procedure - Report Authors
4.1
From 30 September 2005, all report authors are required to give consideration to the new
categories of exempt information as prescribed by the Order, (and set out in bold type in
paragraph 2 of this note) in deciding whether reports may be published or not. Where report
authors decide that the report does contain one or more categories of exempt information
(subject to the public interest test - see paragraph 7 below) the report must still be marked
“Not for Publication” in the usual way, but incorporating reference to the new part and
paragraph numbers of Schedule 12A. For example:“NOT FOR PUBLICATION BY VIRTUE OF PARAGRAPHS [insert appropriate
paragraph 12 to 18] OF PART 4 OF SCHEDULE 12A TO THE LOCAL
GOVERNMENT ACT 1972 (AS AMENDED)”
4.2
However, where information is of a category listed in paragraphs 12 to 15, 17 and 18, the
report may only be withheld from publication if it is in the public interest to treat it as
exempt. Therefore report authors must include an additional paragraph in the body of the
report entitled “Public Interest” which must explain why it is considered that it is in the
public interest for the report to be treated as exempt. Please see paragraph 7 of this note
below for an example of this and factors indicating public interest either way.
4.3
The Council’s Proper Officer for the purposes of access to information under Section 100 of
the Local Government Act 1972 is the Chief Legal and Administration Officer. Therefore
the designation of a report as exempt under the new categories, and the application of the
public interest test, is subject to the approval of the Chief Legal and Administration Officer,
or in his absence, the Principal Solicitor (Corporate).
5
Procedure - At Meetings
5.1
The procedure at meetings for passing a resolution to exclude the public and press to deal
with exempt items will remain the same. However, in addition to the paragraphs of Schedule
12A recited at the top of the report, Members must also have regard to the public interest
reasons given in the body of the report for treating the same as exempt, in deciding whether
to exclude the press and public. The report must only be considered in private session if the
resolution is passed to that effect, on the basis that the majority of the Members present at the
meeting agree that the report contains information which is categorised as exempt and that it
is in the public interest to withhold the information.
6
Procedure - Minutes of the Meeting
6.1
The procedure for recording of Minutes of exempt items will remain the same except that the
public interest paragraph in the report must also be contained within the Minutes. In respect
of Executive Board Minutes, it is suggested that this paragraph be inserted in the Minutes
after reciting the “Reasons for Decision”. For Minutes of other meetings, it should be
included as the last entry in the Minute for each exempt item.
6
7
Public Interest
7.1
In respect of paragraphs 12 to 15, 17 and 18 of the new Part 4 of Schedule 12A, report
authors (and the Proper Officer) must be satisfied that the public interest in treating the report
as exempt outweighs the public interest in disclosing the information. Paragraph 7.2 below
contains examples of public interest factors in favour of publication and withholding
information.
7.2
Public interest factors:7.2.1 Public interest factors in favour of publication:Information which:
Furthers the understanding and participation in public debate.

Promotes accountability and transparency in public decision making and in
spending public money.

Allows the public to understand the reasoning behind decisions made by the
public.

Relates to matters which may affect public health and safety, or damage to the
environment.
7.2.2 Public interest factors which favour withholding:Information which:-
7.3

If disclosed in a competitive environment, could be used by competitors to gain a
competitive advantage.

May make third parties less likely to do business with the Council if their
commercially sensitive information is disclosed.

Relates to or identifies an individual and which if disclosed may breach their
privacy or be likely to be a breach of the Data Protection Act 1998.

Relates to a crime and disclosure may affect the chances of a successful
prosecution or a fair trial.

Relates to a function of the Council which may be prejudiced by premature
disclosure.
Where report authors are of the view that the public interest factors in favour of withholding
the information outweigh the public interest factors in disclosing it, a paragraph reflecting
this must be included in the report. For example (in relation to a matter which may reveal
commercially sensitive information about tenderers) the paragraph should read:“PUBLIC INTEREST
In all the circumstances of the case, the public interest in withholding this report from
publication outweighs the public interest in disclosing it to the public, because it is
considered that it contains commercially sensitive information which could be used by
competitors of the person/company/organisation referred to in this report, to gain a
competitive advantage.”
7.4
7
This paragraph and the designation of the report as exempt is subject to the approval of the
Proper Officer.
8
Conclusion
8.1
The Order reduces the current 15 grounds for treating information as exempt in a Council
report, to 7 grounds. However, the existing grounds 1 to 6 in Part 1 of Schedule 12A are
replaced by new categories 12 and 13, as information relating to or revealing the identity of
an individual. The existing grounds 8, 9 and 10 in relation to expenditure proposed by the
Authority under a contract, terms in the course of negotiations for a contract and the identity
of a person offering a particular tender for a contract are not reproduced. Information
currently treated as exempt under these grounds would only be exempt under the new
categories of exempt information if it contains information relating to the financial or
business affairs of any particular person, including the Council. Existing grounds 11, 12, 13
and 14 are reproduced either identically or in similar format in the new categories, and
existing ground 15 relating to the identity of a protected informant would now come under
the new categories 12 or 13.
The Access to Information Procedure Rules contained in Part 4 of the Constitution will
require amendment once the Order is in force.
9
Advice
9.1
If you require further advice or assistance on the new categories of exempt information, and
the application of the public interest test, please contact:Trevor Coxon, Chief Legal and Administration Officer - Ext. 2202
Anthony Williams, Principal Solicitor (Corporate) - Ext. 2221
Debbie Pennington, Solicitor - Ext 2234
DP/JEC/NOTES/BRIEFING-EXEMPT INFORMATION