Independent persons and the FOIA

As part of the Localism Act 2011 duty on authorities to promote and maintain high standards of conduct by council members, authorities must adopt a code of conduct consistent with the ‘Nolan principles’ of public life (section 28(1)). 

Principal authorities must also have arrangements in place whereby allegations of breach of the code can be investigated and determined (section 28(6)). Section 28(7) requires that these arrangements must include provision for the authority to appoint at least one independent person (IP) whose views must be sought and taken into account by the authority before it determines a conduct investigation. The views of the IP may also otherwise be sought by the authority or subject member concerning a breach allegation.

But what is the position of the IP in respect of the Freedom of Information Act 2000 (FOIA)? In particular, would the views of the IP on an allegation be exempt from disclosure under the exemptions in section 40(2) (personal data) and/or section 36 (prejudice to effective conduct of public affairs)? Those issues were considered by the First-tier Tribunal (FTT) on 8 May in Bennis v Information Commissioner (IC).

FOIA exemptions from disclosure of information are either absolute or qualified. Absolute exemptions include section 40 (personal information – subject to specified limitations). Qualified exemptions (including section 36) apply only if in all the circumstances of the case the public interest in maintaining the exclusion of the section 1 duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information (section 2(1)(b)). This is known as the public interest balance.

In Bennis, the appellant made an unsuccessful complaint of misconduct against a councillor concerning handling of a planning matter. The appellant subsequently requested Stratford-on-Avon District Council to disclose its advice received when handling the complaint. That advice had been provided by one of two of the appointed IPs. The council provided the appellant with all material information except for advice received from the IP which was withheld under sections 40(2), 36(2)(b)(i) (inhibition of free and frank advice) and 36(2)(c).

Following the appellant’s appeal to the IC, the IC issued the following decision notice: ‘With regard to s36(2)(b)(i), it is reasonable to consider that IPs would be constrained by the knowledge that their views in respect of allegations could be made public, which in turn would be likely to prejudice the free and frank provision of advice. With regard to s36(2)(c), this may refer to an adverse effect on a public authority’s ability to offer an effective public service or to meet its wider objectives or purpose. In the council’s view it is reasonable to consider that the disclosure of the IP’s views may lead to a number of outcomes, including IPs being less willing to engage frankly with the process, and including possible prejudice in the event of a further complaint being made to the LGO’ [Local Government Ombudsman].

However, the FTT found that the decision notice was wrong in its assessment of the public interest test concerning both of the exemptions relied on by the council under section 36. In particular this was because while the decision notice gave considerable weight to the contention that IPs would be inhibited in giving robust advice if they knew that their views would be made public, and that this in turn would prejudice the effective conduct of public affairs, the decision notice failed in its assessment of the public interest balance to take into account the fact that the IP’s views would in any event have become public if there had been a hearing.

Regarding the section 40(2) exemption, the FTT was ‘not satisfied that s40(2) FOIA may also be applied to the personal data of the IPs, as their names are already in the public domain, they occupy senior public roles, and their views may be disclosed if there is a public hearing’.

Nevertheless, as to unsubstantiated complaints against councillors, the FTT agreed with the council that these ‘ought not generally to be disclosed to the world at large’ under the FOIA. For in its view: ‘The proper approach to such information is to consider the rights of the councillor concerned as a data subject.’ Consequently the FTT was satisfied that ‘the council could not disclose the councillor’s personal data in this case (consisting of their name and opinions expressed about them) without breaching the data protection principles and that s40(2) FOIA [was] therefore engaged’.

The formal decision of the FTT was therefore to conclude that the IC’s decision notice was wrong in its assessment of the public interest test as it related to the section 36 exemptions relied on by the council. The council was, however, correct to refuse part of the requested information under section 40(2) . Accordingly, the tribunal required no steps to be taken.

Comment

So two useful takeaways from the FTT concerning the status of IP advice under FOIA and the position concerning unsubstantiated complaints against councillors (where in this case section 40(2) was found to be engaged). 

Local authority monitoring officers have their work cut out navigating their way around the conduct regime with the added complication of FOIA (among other legal considerations). The statutory sanctions position is also undefined and there is no common law right for an authority to impose any sanction that interferes with local democracy. 

Nevertheless, sanctions uncertainty could change if the Committee on Standards in Public Life (CSPL) manages to persuade the government to bolster this legislatively. For in June, Dr Jane Martin CBE (former LGO and current member of the CSPL) told the Local Government Annual Monitoring Officers conference that CSPL has ‘heard loud and clear’ that ‘current sanctions are not enough’. CSPL therefore intends to look ‘carefully at the evidence… received, and the wider legal issues involved, as we consider what sanctions it would be appropriate for councils to have available’.

Nicholas Dobson is a consultant at Freeths