Tribunal orders council to release councillor pay rise documents in “public interest”

The First-tier Tribunal has ordered Cumberland Council to release documents relating to a decision to double councillors’ pay over an 11-month period, after it refused to provide information requested by the BBC.

In Cooper v Information Commissioner [2024], the tribunal concluded that there should be “public scrutiny over how such matters as e.g. remuneration in the public sector is calculated and formulated, especially when representations to the Independent Renumeration Panel (IRP) can be made by interested parties and voting on renumeration package can occur within.”

Outlining the background to the case, Upper Tribunal judge Brian Kennedy KC said the appellant requested copies of submissions provided to the Independent Renumeration Panel (IRP) for their consideration. However, the council refused the request.

The council said it believed it was in the public interest to withhold the information.

The BBC contacted the Information Commissioner on 14 August 2023, to complain about the way their request for information had been handled.

The Upper Tribunal judge noted: “During the investigation by the Commissioner, some information falling within the scope of the request was disclosed to the Appellant. However, the Council continued to withhold some information under s36(2)(b)(ii) FOIA (free and frank exchange of views for the purpose of deliberation) and s41(1)(b) FOIA (information provided in confidence) to refuse the request.”

The Commissioner considered the submissions of the appellant and the council and concluded that the council was entitled to withhold the information.

However, following an appeal by the BBC, the First Tier Tribunal ruled that the public interest favours releasing it.

The tribunal concluded: “We find the Appellants arguments compelling in support of disclosure and we accept and adopt the premises on which they are submitted. […] In the circumstances of this case, we find there should be public scrutiny over how such matters as e.g. remuneration in the public sector is calculated and formulated, especially when representations to the IRP can be made by interested parties and voting on renumeration package can occur within.”

It added: “In what could be described as an exercise in lobbying for remuneration options in various forms, the withheld information related to pay and conditions for elected officials in public service. Positions in this sphere should and do expect a high level of scrutiny in relation to such matters. The Public are entitled to be aware of and understand the process that undermines the renumeration and conditions which pertain or are proposed for change.

“A fair and proper assessment of such matters very clearly carries significant weight in the public interest even if they are not approved. Indeed, the fact that they are, or are not approved and the reasons for such decisions further inform the public with the necessary transparency and accountability that FOIA is engaged to provide.”

According to the BBC, the council has been given until 10 October to provide the documents.

A spokesperson for Cumberland Council said: "The council approaches all FOI requests on the basis that the information will be provided unless an exemption applies as set out in law.  Therefore, in the vast majority of cases, we will release the information requested where it is held by the council. 

"On this occasion the Monitoring Officer who is the qualified person to make the determination, believed legal exemptions were engaged and the balance of public interest laid in favour of withholding the information.  This is on the basis of the potential risk to the Independent Renumeration Panel's role in the process of determining allowances; it is important that the IRP are able to carry out their role efficiently and effectively and, in order to do this, it needs open and honest representations made to it. Poor quality or a lack of representations would be likely to damage or inhibit its ability to carry out its role effectively.  This position was supported by the Information Commissioner’s Office (ICO) in their Decision Notice.   

"It is this Decision Notice which has been appealed and the First Tier Tribunal has upheld the grounds of appeal.  The council will now work with the ICO to determine the next steps to be taken in this process.”

The original decision can be found on the council's website at: Agenda for Shadow Authority for Cumberland Council on Tuesday 18 October 2022, 10.30 am | Cumberland Council (moderngov.co.uk)

Lottie Winson