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Tribunal upholds decision by council to refuse to disclose views of independent persons on complaint about councillor

The First-Tier Tribunal has dismissed a legal challenge to a district council’s decision to refuse, in response to a freedom of information request, to provide the views of two independent persons on a complaint about the conduct of a councillor.

In Cyril Bennis v Information Commissioner (Dismissed) [2021] UKFTT 2017_0220 (GRC) the appellant had made a complaint to Stratford-upon-Avon District Council about the conduct of the councillor (‘Councillor A’).

The complaint was considered by Stratford’s monitoring officer, who sought the views of the two IPs appointed under the Localism Act 2012. On 13 January 2017 the monitoring officer informed the appellant by letter that his complaint would not be investigated any further.

On 23 January 2017 Mr Bennis made a request for information in the following terms: “I have requested under the Freedom of Information Act all correspondent (sic) relating to my complaint.”

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Stratford provided the majority of the information held but refused to provide the IPs’ views on the complaint. In doing so, it relied on ss. 36(2)(b) & 36(2)(c), s. 40(2) and s. 40(3)(a)(i) of the Freedom of Information Act 2000 (‘FOIA’).

On 4 September 2017 the Information Commissioner upheld the council’s decision in relation to ss. 36(2)(b) and 36(2)(c).

The Commissioner concluded that it was reasonable for the Stratford to have withheld information comprising the IPs’ views on the complaint, on the basis that publication would be likely to inhibit the free and frank provision of future advice, and would be likely to be otherwise prejudicial to the effective conduct of public affairs.

The Commissioner went on to apply the public interest test set out in s.2(2) FOIA and decided that the public interest in the withheld information being disclosed was outweighed by the public interest in the exemption being maintained.

Mr Bennis appealed but this has now been rejected by the FTT.

The FTT said it was satisfied that the focus of the appellant’s grounds of appeal was the public interest balancing test (the second stage identified in Malnick) rather than the reasonableness of the qualified person’s opinion as to prejudice (the Malnick threshold question).

The tribunal also noted the generalised nature of the appellant’s case, which relied on the public interests of transparency, openness and accountability in relation to public sector activities.

The FTT said these were always important public interests but was satisfied that they should not be afforded especial weight in the context of local democracy. “Rather, the weight afforded must always be fact dependant and varies according to context.”

It was further satisfied that the council’s usual practice, notwithstanding its flexible approach but in line with that of other local authorities, was that IPs’ opinions would generally be treated as confidential and would only be published when a complaint proceeds to a public hearing.

“We find that, in the context of this case, the IPs provided their opinions on the merit of the complaint with a reasonable expectation that these views would not be made public,” the FTT said.

The tribunal also considered whether, in light of the council’s flexible approach and the possibility of a public hearing, the candour with which IPs express their opinions might already be inhibited by the possibility of publication. “We conclude that it is not, noting Mr Grafton’s [Stratford’s monitoring officer’s] evidence that an outcome that includes publication rarely arises, if at all.”

The FTT further concluded that there was a significant risk that the candour, and therefore the quality, of the IPs’ advice to the council would be diminished were it to become more likely that it would be made public.

“This is because we accept the Respondents’ submissions as to the risk of self-censorship were an IP to become concerned that their views are likely to be made public. We find in addition that this risk is particularly acute in the context of local democratic activities, where the IPs are named and are members of the local community.”

The FTT said it was satisfied that the ability of the IPs to provide candid and uncensored advice to the monitoring officer was an important part of the council’s complaint system. “We find that any inhibition of the IP’s advice is likely to reduce the effectiveness of the complaints system overall and to have a negative impact on the quality of decisions taken.

“We find in addition that there is a strong public interest in avoiding detriment to the Council’s process for dealing with complaints made against elected officials.”

Having considered all of these factors, the FTT concluded that the public interests of transparency, openness and accountability were outweighed in this case by the significant public interest in avoiding the risk of inhibition of the IPs’ candid advice, and in maintaining the effectiveness if the council’s complaint process that might otherwise be undermined.

On s.40(2) the tribunal considered that both Councillor A and the IPs had a legitimate expectation of privacy in relation to the withheld material. It also found that the appellant had failed to identify any consideration in favour of publication that amounted to a “pressing social need” or any other reason capable of overriding Councillor A’s right to respect for her private life.

The FTT was satisfied that publication would be unfair to Councillor A. “We find in addition that publication of an unsubstantiated complaint against an elected official gives rise to a risk of reputational damage.”

Stratford submitted that similar considerations applied to the IPs’ personal data. However, the FTT noted that the role is a formal appointment and appeared, from submissions, to be public facing. It also appeared that the names of the IPs in the case were already known.

“It is not immediately apparent how the Council’s reliance on s40(2) distinguishes the personal data aspects of the IPs’ advice to the Council from that of senior civil servants, whose names are publicly known and whose advice on matters affecting central government policy are regularly the subject of information requests, where s. 40(2) is not relied upon.”

The FTT concluded that there was insufficient information available to it about the role and function of the IPs for it to determine the third question in IC v Rodriguez-Noza and Foster in relation to their personal data, as it seemed to it that a different balancing exercise may be required. “However, a determination of the Council’s reliance on s. 40(2) in relation to the IPs is not required for present purposes.”

The tribunal dismissed that appeal and upheld the decision notice of 4 September 2017.

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