How much information are councillors entitled to? David Merson examines the legal background.
I was recently asked a question about how much information local councillors are actually entitled to. This got me thinking because there is, so far as I am aware, no single source of right on which to base a claim to entitlement to information or documents.
There are statutory provisions which set out in some detail what information councillors may and may not be entitled to have and whether once they have it they can disclose the contents thereof; and then there are more flexible common law entitlements.
In principle councillors have, in addition to the ordinary rights of access to certain information enjoyed by the general public, the right to access any information held by the council of which they are a member. This right of access may not extend to publication or otherwise making public and indeed councillors may be asked to sign up to a confidentiality undertaking before being provided with certain information.
The statutory position
Section 100F Local Government Act 1972 (as amended) (the Act) provides that any document which is in the possession or under the control of a principal council being a non-metropolitan county, a district or a London borough council (and which by virtue of s.100J of the Act has a very wide meaning beyond that) and contains material relating to any business to be transacted at a meeting of the council or a committee or sub-committee of the council shall be open to inspection by any member of the council.
This does not require the document to be open to inspection if it appears to the proper officer (being the officer designated by the authority for these purposes) that it discloses exempt information although the document may still have to be open to inspection if the information is information of a description for the time being falling within the following descriptions:
- Information relating to the financial or business affairs of any particular person (including the authority holding that information) (except to the extent that the information relates to any terms proposed or to be proposed by or to the authority in the course of negotiations for a contract), or
- 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.
These regulations were made on 10 August 2012 and came into force on 10 September 2012 applying to those local authorities in England that are operating executive arrangements under Part 1A Local Government Act 2000, as amended by s.21 and Schedule 2 Localism Act 2011.
- Clarify and extend the circumstances in which local authority executive decisions are to be open to the public (Part 2). There is a presumption that a meeting will be open to the public unless the nature of the business that is transacted means that, in breach of the obligation of confidence, confidential information would be disclosed to the public.
- Make provision in relation to key decisions of the executive and the publicity that must be given before the key decision is taken (Part 3) and for the inclusion of prescribed information in a written statement of the executive decision (Part 4).
- Set out the additional rights of local authority members and members of overview and scrutiny committees to access documents (Part 5) and general provisions relating to information, such as the information which is exempt from disclosure (which includes advice from a political adviser).
The Regulations provide in Part 5 that:
In Regulation 16 there are additional rights of access to documents for members of local authorities which ensure that any document which (a) is in the possession or under the control of the executive of a local authority; and (b) contains material relating to any business to be transacted at a public meeting, must be available for inspection by any member of the relevant local authority. Any such document must be available for such inspection for at least five clear days before the meeting except that (a) where the meeting is convened at shorter notice, such a document must be available for inspection when the meeting is convened; and (b) where an item is added to the agenda at shorter notice, a document that would be required to be available in relation to that item, must be available for inspection when the item is added to the agenda.
Any document which (a) is in the possession or under the control of the executive of the local authority; and (b) contains material relating to (i) any business transacted at a private meeting; (ii) any decision made by an individual member in accordance with executive arrangements; or (iii) any decision made by an officer in accordance with executive arrangements, must be available for inspection by any member of the relevant local authority when the meeting concludes or where an executive decision is made by an individual member or an officer immediately after the decision has been made. Any such document must be available for such inspection, in any event, within 24 hours of the conclusion of the meeting or the decision being made, as the case may be.
Neither of these provisions applies to make a document to be available for inspection if it appears to the proper officer that it discloses exempt information of a description falling within Part 1 Schedule 12A of the Act which sets out the descriptions of exempt information in England.
However these provisions do require the document to be available for inspection if the information is information of a description for the time being falling within either (a) paragraph 3 of Schedule 12A to the Act namely information relating to the financial or business affairs of any particular person (including the authority holding that information) (except to the extent that the information relates to any terms proposed or to be proposed by or to the authority in the course of negotiations for a contract); or (b) paragraph 6 of Schedule 12A to the Act namely 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.
Where compliance with the requirements would involve the disclosure of advice provided by a political adviser or assistant that paragraph will not apply to that document or part.
Regulation 17 provides for additional rights of access to documents for members of overview and scrutiny committees who are entitled to a copy of any document which (a) is in the possession or under the control of the executive of that authority; and (b) contains material relating to (i) any business that has been transacted at a meeting of a decision-making body of that authority; (ii) any decision that has been made by an individual member of that executive in accordance with executive arrangements; or (iii) any decision that has been made by an officer of the authority in accordance with executive arrangements.
The executive must provide that document as soon as reasonably practicable and in any case no later than 10 clear days after the executive receives the request.
No member of an overview and scrutiny committee is entitled to a copy (a) of any such document or part of a document as contains exempt or confidential information unless that information is relevant to (i) an action or decision that that member is reviewing or scrutinising; or (ii) any review contained in any programme of work of such a committee or sub-committee of such a committee; or (b) of a document or part of a document containing advice provided by a political adviser or assistant.
Where the executive determines to refuse such a request it must provide the overview and scrutiny committee with a written statement setting out its reasons for that decision.
Local councillors can, like a member of the general public, also resort to The Freedom of Information Act 2000 and the Environmental Information Regulations 2004.
There is a general presumption in favour of disclosure unless one of the exemptions applies. This is huge topic in its own right and the Information Commissioner’s Office provides two very helpful publications for organisations; first, the Guide to Freedom of Information and second, the Guide to the Environmental Information Regulations. In addition there is detailed guidance on the exemptions that may be applicable.
Local authority accounts
Ss.14, 15 and 16 Audit Commission Act 1998, and Regulations 21, 22 and 25 Accounts and Audit (England) Regulations 2011 provide that there is a right to inspect and question the council's auditor. S.14 gives the right to inspect and take copies of statements of accounts and auditors’ reports. S.15 gives the right to inspect, copy documents and question the council’s auditor. S.16 gives the right to make an objection to the council’s auditor. These rights are however restricted to prevent access to documents containing personal information.
In addition s.228 (3) of the Act provides that “The accounts of a local authority and of any proper officer of a local authority shall be open to the inspection of any member of the authority, and any such member may make a copy of or extract from the accounts”.
The common law ‘need to know’
Under common law principles councillors have the right to access information held by their authority where it is reasonably necessary to enable the member to properly perform their duties as a councillor.
However, if the councillor’s motive for seeing documents is indirect, improper or ulterior this may be raised as a bar to their entitlement. Councillors are not, therefore, allowed to go off on a ‘fishing expedition’ through their council’s documents. If a councillor is a member of a particular committee or sub-committee, then they have the right to inspect documents relating to the business of that committee or sub-committee. If not a member of that committee or sub-committee, the councillor would have to show good cause why sight of them is necessary to perform their duties (See R v. Clerk to Lancashire Police Committee ex parte Hook  Q.B. 603).
In R v Birmingham City District Council, ex p. O  1 A.C. 578;  2 W.L.R. 189;  1 All E.R. 497; 81 L.G.R. 259; (1983) 127 S.J. 105 the House of Lords (Lord Diplock, Lord Wilberforce, Lord Keith of Kinkel, Lord Roskill and Lord Brightman) considered an adoption case.
During the course of investigations into housing problems being suffered by prospective adoptive parents, a city councillor on the housing committee, but not a member of any social services committee, became concerned at the suitability of the prospective parents for the adoption. She asked to see the files compiled by the social services department and the prospective parents sought an order restraining disclosure, after the city council had indicated that it intended to provide the councillor with the material she sought. The Divisional Court refused the application, but the Court of Appeal allowed the parents' appeal.
The Lords allowed the council's appeal taking the view that the real dispute was between the council itself and the social workers it employed. In the present case, notwithstanding that the actual decision on the adoption might have been made by a committee, if anything went wrong, it would be the council as a whole which was responsible. While a councillor was accordingly entitled to see any information possessed by the council which related to a committee of which she was a member, if she had a good reason for seeing that material, which in most cases she would, being a member of the appropriate committee; such a right of access to material did not, however, extend to areas which were not within the councillor's direct responsibility, and which were covered by committees of which she was not a member. In those cases the councillor had to show a "need to know": if she did establish a need, then she was entitled to the information. On the facts in this case it could not be said that the councillor had failed to make out a genuine concern and need to have made available the information she sought.
In R v Sheffield City Council Ex parte Chadwick (1985) 84 LGR 563, the Divisional Court (Woolf J) took the view that it is not lawful for a council, by allowing a sub-committee to be used for party political purposes, to justify a need for confidentiality and secrecy which would not otherwise arise. However, it is not prima facie unlawful for a majority party to exclude members of other parties from committees. If an excluded councillor reasonably requests information about committee meetings, the committee must provide that information, and if the most convenient way of supplying that information is by allowing him to attend the meeting, then he must be allowed to attend. The position is of course different now with the need for political balance in committees ands sub-committees arising out of the changes in s.15 and Schedule 15 of the Local Government and Housing Act 1989.
In R v Hackney LBC Ex parte Gamper  1 W.L.R. 1229;  3 All E.R. 275; 83 L.G.R. 359; (1985) 82 L.S.G. 438 the Queen's Bench Division (Lloyd J) considered the case of G, the applicant, who was a Liberal councillor in the London Borough of Hackney, which had a large Labour majority. G was a member of both the public services committee and the housing sub-committee. The council was required by law to put its maintenance and construction work out to tender and to run its direct Labour organisations as a business. In this respect the public services committee appointed two sub-committees. G was concerned about empty flats and inadequate repair services and sought access to meetings and agendas of the sub-committees, but was refused on the ground that they were confidential. G sought judicial review and the court held, in granting the application, that G needed access as a councillor, as a member of the housing sub-committee and of the public services committee in order to ensure that those committees were doing their work efficiently, in order to carry out his duties as a councillor. Furthermore, no reasonable council could properly have reached the decision to refuse such access, and the council's decisions would be quashed.
A member must not disclose information given to them in confidence nor disclose information acquired which they believe is of a confidential nature, unless they: a) have received the consent of a person authorised to give it; or b) are required by law to do so.
If information is accessed using the Freedom of Information / Environmental Information Regulations provisions the information can be regarded as public and the councillor may share the information with others.
If on the other hand the councillor has accessed the information via the provisions of the Act or the common law 'need to know' then in some cases the information may still be confidential and the councillor bound by confidentiality. In that case they should not publish or otherwise disclose the information to a third party.