Exclusion of Press and Public
Guidance about Schedule 12 A
Local Government Act 1972
Introduction
From 1 March 2006 Schedule 12A of the Local
Government Act 1972 (“the 1972 Act”) was amended. This was to
take account of the impact of the Freedom of Information Act 2000
(FOIA). There are ten categories of information which can be
exempt, three of which relate specifically to Standards Committee
or Sub-Committee meetings. All of them require consideration
of the public interest before deciding whether to withhold the
information. Details of the categories are attached as an
Appendix to this guidance.
What is the starting point?
The initial position should always be in
favour of disclosure of 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 one or more of the ten categories
apply. If they do apply, consider the public interest
test.
What is the public interest test?
The public interest test in Section 2 of the
FOIA provides that the Council must release the information
unless,
“in all the circumstances of the case, the public interest in
maintaining the exemption outweighs the public interest in
disclosing the information”.
This requires the Council to make a judgement 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 what the
public interest is 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 some of the relevant considerations in favour of
disclosure:-
· the public interest in disclosure is
particularly strong where the information in question 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
· the public interest in a local
interest group having sufficient information to represent
effectively 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 the FOIA the
Information Commissioner lists the following public interest
factors that would encourage the disclosure of information:-
· furthering the understanding of and
participation in the public debate of issues of the day
· promoting accountability and
transparency by public authorities for decisions taken by them
· 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;
and
· bringing to light information
affecting public safety
The guidance from the Information
Commissioner’s Officer is in Freedom of Information Act
Awareness Guidance No 3 The Public Interest Test, which is
available from the website of the Information Commissioner:
http://www.informationcommissioner.gov.uk/cms/document
Uploads/AG%203%20%20%Pub%20Int%20reform%20may05.pdf.
Who decides whether something is exempt or not?
The Cabinet, Committee or person (where a
delegated Officer decision is involved) considering the report will
actually decide whether information contained in the report is
exempt or not. 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 information within a report
should be exempt or not. A practice of applying “Exempt”
status to a report without reasons being set out is no longer
acceptable. Democratic Services will be the first point of
contact for the report writer regarding a report or information
within a report which he/she considers should be exempt.
Legal advice on the application and interpretation of the new
Schedule 12A provisions will be provided by an Officer from Legal
Services (including the Head of Legal Services or Director of Law
and Democracy). In the event of any dispute, ultimately the
Service Director – Legal and Democratic Services 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.
Whether a report is considered to contain exempt information is a
matter initially for the report writer.
How, in practice, should reports be written to take account of
this new 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 will
not always be a practical option, particularly where the exempt
information forms the majority 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 may be no alternative to making all of the report
exempt.
Appendix
Schedule 12A from the 1972 Act from 1 March
2006
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Description of
Exempt Information
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Qualification
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Notes
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Information is not exempt information if it
relates to proposed development for which the local planning
authority may grant itself planning permission pursuant to
regulation 3 of the Town and County Planning General Regulations
1992.
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Applies to all categories of otherwise exempt
information.
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1. Information
relating to any individual
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information.
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Names, addresses or telephone numbers can
identify individuals.
Also consider the Council’s Data Protection
Act responsibilities.
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2. Information which
is likely to reveal the identity of an individual
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information.
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Names, addresses or telephone numbers can identify
individuals.
Also consider the Council's Data Protection Act
responsibilities.
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3. Information
relating to the financial or business affairs of any particular
person (including the authority holding that
information).
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information.
Information falling within paragraph 3 is not
exempt information by virtue of that paragraph if it is required to
be registered under:-
(a)
the Companies Act 1985
(b)
the Friendly Societies Act 1974
(c)
the Friendly Societies Act 1992
(d)
the Industrial and Provident Societies Acts
1965 to 1978
(e)
the Building Societies Act 1986
(f) the Charities
Act 1993
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The authority is a reference to the principal
council (eg Rochdale) or, as the case may be, the committee or
sub-committee in relation to whose proceedings or documents the
question whether information is exempt or not falls to be
determined.
Financial or business affairs includes
contemplated, as well as past or current activities.
Registered in relation to information required
to be registered under the Building Societies Act 1986, means
recorded in the public file of any building society (within the
meaning of that Act).
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4. Information
relating to any consultations or negotiations, or contemplated
consultations or negotiations, in connection with any labour
relations matter arising between the authority or a Minister of the
Crown and employees of, or office holders under, the authority.
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information.
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The authority is a reference to the principal
council or, as the case may be, the committee or sub-committee in
relation to whose proceedings or documents the question whether
information is exempt or not falls to be determined.
Employee means a person employed under a
contract of service.
Labour relations matter means:-
(a) any of the
matters specified in paragraphs (a) to (g) of Section 218 (1)
of the Trade Union and Labour Relations (Consolidation) Act
1992 (matters which may be the subject of a trade dispute, within
the meaning of that Act); or
(b) any dispute
about a matter falling within paragraph (a) above.
(this applies to trade disputes relating to
office holders as well as employees).
Office holder in relation to the authority,
means the holder of any paid office appointments to which are or
may be made or confirmed by the authority or by any joint board on
which the authority is represented or by any person who holds any
such office or is an employee of the authority
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5. Information in
respect of which a claim to legal professional privilege could be
maintained in legal proceedings.
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information.
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Privilege lies with the “client” which broadly
is the Council.
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6. 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
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information
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The authority is a reference to the principal
council or, as the case may be, the committee or sub-committee in
relation to whose proceedings or documents the question whether
information is exempt or not falls to be determined.
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7. Information
relating to any action taken or to be taken in connection with the
prevention, investigation or prosecution of crime.
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information
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Description of
exempt information relating to Standards Committee meetings ONLY
(in addition to paras 1 - 7 above)
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Qualification
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Notes
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8. Information which
is subject to any obligation of confidentiality.
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information
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This will not apply to all the papers before a
Standards Committee and is likely to need careful consideration in
the circumstances of a Local Investigation or Determination.
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9. Information which
relates in any way to matters concerning national security.
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information
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10. The deliberations of a
Standards Committee or of a Sub-Committee of a Standards Committee
established under the provisions of Part 3 of the Local Government
Act 2000 in reaching any finding on a matter referred under the
provisions of Section 60(2) or (3), 64(2), 70(4) or (5) or 71(2) of
that Act.
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Exempt information if and so long, as in all
the circumstances of the case, the public interest in maintaining
the exemption outweighs the public interest in disclosing the
information
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This will apply in relation to Local
Determinations whether the original report came from an Ethical
Standards Officer or from a Local Investigator.
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