Access to information: Exempt information
Geoff Wild provides guidance about Schedule 12A Local Government Act 1972 and the withholding of information.
Introduction
To increase transparency in local government decision making, Part 5A of the Local Government Act 1972 (the Act) provides for public access to the meetings and documents of principal councils and their committees and sub-committees. However, such access should not be made available to the public where this would disclose confidential information.
Schedule 12A of the Act lists categories of confidential information and is the primary point of reference for council members and officers when deciding which parts of meetings and documents are not to be open to public access.
Schedule 12A plays a key role in enabling councils strike a balance between the right of the public to attend meetings and inspect related documents, and the need to safeguard information which would be inappropriate to disclose to the public.
Schedule 12A was amended by the Local Government (Access to Information)(Variation Order) 2006 to take account of the impact of the Freedom of Information Act 2000 (FOIA).
There are seven categories of information that can be exempt from publication, all of which require consideration of the public interest before deciding whether to withhold the information. Details of the categories are contained in the appendix to this guidance.
What’s the starting point?
The initial position should always be in favour of disclosing as much information as possible about the decisions the council takes, and only in limited circumstances should information be withheld where there is a justification in law for doing so.
How should we consider the exemptions?
Start from the position that you will disclose everything. If there is information that you think should be withheld, check if any of the seven categories apply. If they do apply, consider the public interest test.
What’s the public interest test?
When applying the public interest test, there's a big difference between releasing information that is in the public interest to share, versus information that the general public are simply interested in.
The public interest test in Section 2 of FOIA provides that the council must release the information unless in all the circumstances, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
This requires the council to make a judgment about the public interest. Where the balance between disclosure and withholding the information is seen as equal, the information must be released.
What is the public interest?
There is no legal definition of ‘public interest’, but Meredith Cook in her 2003 study "Balancing the Public Interest: Applying the public interest test to exemptions in the UK Freedom of Information Act 2000" identifies the following as relevant considerations in favour of disclosure:
- The information would assist public understanding of an issue that is subject to current national debate.
- The issue has generated public or parliamentary debate.
- Proper debate cannot take place without wide availability of all the relevant information.
- The issue affects a wide range of individuals or companies.
- A local interest group having sufficient information to effectively represent local interests on an issue.
- Facts and analysis behind major policy decisions.
- Knowing reasons for decisions.
- Accountability for proceeds of sale of assets in public ownership.
- Openness and accountability for tender processes and prices.
- Public interest in public bodies obtaining value for money.
- Public health.
- Contingency plans in an emergency.
- Damage to the environment.
In the introduction to FOIA, the Information Commissioner lists the following public interest factors that encourage the disclosure of information:
- Furthering the understanding of and participation in the public debate of issues of the day.
- Promoting accountability and transparency for decisions taken by public authorities.
- Promoting accountability and transparency in the spending of public money.
- Allowing individuals to understand decisions made by public authorities affecting their lives and, in some cases, assisting individuals in challenging those decisions.
- Bringing to light information affecting public safety.
The Information Commissioner's Officer has issued detailed guidance on the Public Interest Test.
A practice of applying "Exempt" status to a report without reasons being set out and consideration of the public interest is not acceptable.
Who decides whether something is exempt or not?
The Cabinet, committee or person (where a delegated officer or individual member decision is involved) considering the report will decide whether or not information contained in the report is exempt.
However, bearing in mind the legal requirements for agendas and papers to be published in advance, the report writer initially needs to consider these issues and give the reasoning for their view as to whether or not information within a report should be exempt.
Democratic Services will be the first point of contact for the report writer regarding a report (or information within a report) which they consider should be exempt. Legal advice on the application and interpretation of the Schedule 12A provisions can be provided by Legal Services. In the event of any dispute, the Monitoring Officer will make a final decision as to whether or not some or all of a report should be treated as exempt, before the relevant agendas and papers are published.
What are the process considerations?
You need to build in a step in the writing of reports that involves consideration of whether there is exempt information contained within a report and whether the public interest in disclosure outweighs the use of an exemption, and prepare reasons for your decision.
How, in practice, should reports be written to take account of this approach?
Where there is considered to be exempt information in a report, decide if it should be placed in a schedule separate to the main body of the report. All that does is physically separate the potentially exempt information into an easily identifiable document. In the event of a FOIA request being made, the main body of the report can then be disclosed with the exempt schedule being withheld.
This may not always be a practical option, however, particularly where the exempt information forms most of the information within the report or where its separation from the rest of a report makes the report meaningless or difficult to interpret or present. In such cases, there will be no alternative to making all the report exempt.
Geoff Wild is a Legal and Governance Consultant. He is celebrating his 40th anniversary as a local government lawyer.
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