Tribunal tells council to disclose document prepared for peer review process

The London Borough of Havering must disclose parts of a race equality, accessibility, diversity and inclusion review conducted for it by the Local Government Association (LGA), the First-tier Tribunal (General Regulatory Chamber) Information Rights has ruled, overturning an earlier decision by the Information Commissioner.

This decision was reached even though the tribunal recognised it might affect the LGA peer review process.

Applicant Charles Thomson asked for disclosure of a 400-page internal self-assessment document that had been prepared by Havering at the start of the review.

The council refused to disclose this citing section 36 of the Freedom of Information Act 2000.

Mr Thomson complained to the Information Commissioner who decided Havering had failed to demonstrate that section 36 of FOIA was engaged.

The Commissioner required the council to reconsider the request and either release the information or issue a refusal notice that met the Act’s statutory requirements.

Havering again refused, stating that the public interest in maintaining the exemption outweighed the public interest in disclosure.

Mr Thomson requested an internal review, which reached the same conclusion and again complained to the Commissioner, saying the ‘public interest test’ the council claimed to have performed was “outrageous [as] it lists only one, nebulous factor favouring disclosure and then numerous factors favouring suppression, totally ignoring and omitting all of the public interest arguments I have already advanced”.

Havering argued those involved - in particular staff - “were given assurances that whatever they said or provided would be confidential.

“There are only several staff forum leads and service representatives, so it would be easy for responses to be identified and attributed.”

The council also said the LGA had told it that if Havering was compelled to publish the self-assessment “this would have a big impact on the LGA peer sector offer, particularly when central government is trying to push local authorities to have more of them.

“The LGA is also concerned that disclosable self-assessments would be heavily skewed to the positive and make the rationale for peer assessment less effective or desirable.”

This time the Commissioner agreed with Havering, concluding the exemption should be maintained because “for the self-assessment and LGA peer review process to be effective and achieve positive outcomes, it is important that a ‘safe space’ is provided to allow a local council to openly and honestly set out, analyse and reflect upon, its approach to matters relating to the relevant issues, so it can effectively identify where it is both doing well, and where improvements could be made.”

The Commissioner also said there was a real risk that disclosure would affect the openness of future peer reviews and self-assessments, and there may be less willingness by councils to engage in the process on a voluntary basis.

In its ruling, the tribunal found this was wrong and said the public interest in maintaining the exemptions was outweighed by the case for disclosure.

It said: "We conclude that the requested material, redacted to remove personal data, should be disclosed under FOIA because even although the exemption is engaged the public interest in maintaining the exemption in relation to that material does not outweigh the public interest in disclosure.

“We note that at the time of the request the peer review and self assessment process had been completed, thus the focus of the public interests relied upon by the Commissioner must, as a matter of logic, be restricted to future risks of prejudice to those public interests.”

The tribunal said its decision was limited to the self assessment document, and it had not been asked to consider results from focus groups, meetings or other forms of peer review, so different considerations might apply to those.

Explaining its decision, the tribunal said: “The Commissioner suggests in the decision notice that staff were given reassurance that the information arising from the self assessment process would be used only for the purpose of internal analysis and the peer review.

“We acknowledge that the LGA process is voluntary for councils and the recommendations are not binding however, it is inevitable that the self assessment would be passed to an external body, the LGA, as part of that review the results of which would be publicly available.

“This self assessment was not for purely internal analysis by the council and any assurance to the contrary would have been unwise.”

It concluded the public interest in maintaining the exemption did not outweigh the significant public interests in transparency and accountability around race equality, accessibility, diversity and inclusion, and the need for an informed debate about how the council conducted the self assessment.

"We do not accept the Commissioner’s conclusion that disclosure of this self assessment report would remove the safe space that allows the free exchange of honest views,” the tribunal said.

It added: “We are satisfied that disclosure of the information requested in this case, suitably redacted to remove personal data, will not impact on the integrity of the process to the extent suggested.”

Mark Smulian