Local government transparency & information access rights

A guide to help potential contributors develop their skills.

If you are considering contributing to Exeter Observer please see our contributors guide.

Local government transparency

Access to local authority meetings and documents and reporting rights

• Relevant Exeter local authorities all leader & cabinet/executive local government model (vs directly-elected mayor) under Local Government Act 2000 (since amended by Localism Act 2011) but root legislation remains Local Government Act 1972 as amended by Local Government (Access to Information) Act 1985.
• Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 and Openness of Local Government Bodies Regulations 2014 additionally allow audio/video recording, live blogging etc.
• Meetings of decision-making bodies must be open to the public (but position re. semi-formal or multi-authority meetings is unclear).
• Minimum five clear days’ notice of meetings & agenda inc. reports publication required (then decisions record/minutes).
• BUT public may be excluded from parts of the meeting if either confidential or exempt information would be disclosed (or to maintain order).
• Confidential information has narrow definition.
• Exempt information has wider definition (see below) - and is arguably misused.
• A public interest test can be applied to exempt information claim to challenge redaction, esp. when significant public money involved.
• Freedom of Information requests might be used to obtain exempt information.
• Registers of member’s interests and personal expenses must also be made publicly available.
• Where local authority is the copyright holder, documents/reports may be reproduced (with some privilege rights).
• 1972/1985 acts apply to fire authorities and some joint committee and board meetings.
• Public Bodies (Admission to Meetings) Act 1960 applies to local health authorities and NHS Trusts.
• Health and Social Care Act 2001 gives powers similar to 1985 act re. local authorities with social service responsibilities, but with extended exemptions.
• Also specific provisions for Police & Crime Commissioners & police and crime panels.

Schedule 12A to the Local Government Act 1972

Part 1 - Descriptions of Exempt Information: England

1. Information relating to any individual.

2. Information which is likely to reveal the identity of an individual.

3. Information relating to the financial or business affairs of any particular person (including the authority holding that information).

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.

5. Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

6. Information which reveals that the authority proposes -

   • to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or
   • to make an order or direction under any enactment.

7. Information relating to any action taken or to be taken in connection with the prevention, investigation or prosecution of crime.

   Part 2 - Qualifications: England

8. Information falling within paragraph 3 above is not exempt information by virtue of that paragraph if it is required to be registered under -

   • the Companies Acts (as defined in section 2 of the Companies Act 2006);
   • the Friendly Societies Act 1974;
   • the Friendly Societies Act 1992;
   • the Industrial and Provident Societies Acts 1965 [Co-operative and Community Benefit Societies and Credit Unions Acts 1965] to 1978;
   • the Building Societies Act 1986; or
   • the Charities Act 2011.

9. 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 Country Planning General Regulations 1992.

10. Information which -

    • falls within any of paragraphs 1 to 7 above; and
    • is not prevented from being exempt by virtue of number 8 or 9 above,

is 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.

Local Government Transparency Code

Commercial confidentiality:

“The Government has not seen any evidence that publishing details about contracts entered into by local authorities would prejudice procurement exercises or the interests of commercial organisations, or breach commercial confidentiality unless specific confidentiality clauses are included in contracts.

“Local authorities should expect to publish details of contracts newly entered into – commercial confidentiality should not, in itself, be a reason for local authorities to not follow the provisions of this Code.

“Therefore, local authorities should consider inserting clauses in new contracts allowing for the disclosure of data in compliance with this Code.”

Exclusions and exemptions:

“Where information would otherwise fall within one of the exemptions from disclosure, for instance, under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community (INSPIRE) Regulations 2009 or fall within Schedule 12A to the Local Government Act 1972 then it is at the discretion of the local authority whether or not to rely on that exemption or publish the data.

“Local authorities should start from the presumption of openness and disclosure of information, and not rely on exemptions to withhold information unless absolutely necessary.”

cf.

• Open and Accountable Local Government (Department for Communities & Local Government 2014)
• Local Government Transparency Code (Department for Communities & Local Government 2015)
• Local Government Transparency Code (House of Commons Library briefing 2016)
• Local Government Transparency Code (Local Government Association guidance)

• Exeter City Council Constitution (June 2019):

  • 4e. Access to Information Procedure Rules
  • 5c. Members’ Code of Conduct (inc. Nolan principles of public life)
  • 5d. Officers’ Code of Conduct
  • 5e. Protocol on Member/Officer Relations
  • 5f. Media Protocol for Portfolio Holders and Scrutiny Chairs
  • 5k. Protocol for Recording and Use of Social Media at Council and Committee Meetings

• Exeter City Council Access to Information Policy

• McNae’s Essential Law for Journalists, Mike Dodd & Mark Hanna, Oxford University Press (24th edition, 2018), Chapter 31 - other information rights and access to meetings

Public accounts inspection aka audit rights

Local Audit and Accountability Act 2014 & Local Audit (Access to Documents) Act 2017:

• Conveys the right to examine and/or copy records of all transactions referred to in statement of accounts covering previous financial year.
• Covers bills, invoices, receipts, deeds, property transactions, books, contracts (inc. commercial, exc. staff) etc.
• Covers most public authorities except health service.
• Only applies for six weeks in June/July each year, must be advertised inc. contact details (press officers must not be involved).
• Local electors have additional right to ask questions (inc. of the auditor), object to auditor, request investigation.
• BUT some commercial confidentiality (and personal identification) exemptions apply.

cf.

• Local authority accounts (National Audit Office 2019)
• Local Audit and Accountability Act 2014 (Local Government Information Unit 2013)
• Guide to audit rights (The People’s Audit)
• McNae’s Essential Law for Journalists, Mike Dodd & Mark Hanna, Oxford University Press (24th edition, 2018), Chapter 31 - other information rights and access to meetings

NB the government announced a review of local authority financial reporting in July 2019.

Information access rights

Freedom of Information Act 2000

• ICO FOI guidance for requestors
• ICO FOI guidance for organisations
• ICO FOI dataset guidance
• ICO public interest test
• My Society
• My Society FOI statistics
• FOI Code of Practice
• FOI directory
• FOI tools
• FOI guide (Paul Gibbons)
• FOI guide (Matt Burgess)
• FOI wiki
• FOI resources and tips
• FOI howto
• What Do They Know
• Your Right To Know (Helen Darbishire)
• Bureau of Investigative Journalism

Environmental Information Regulations 2014

• ICO Environmental Information Regulations guidance
• Aarhus Convention

NB covers more bodies than Freedom of Information Act 2000 with fewer exemptions.

More guides

• News writing
• News brief
• Submission guide
• What is news?
• Objectivity, neutrality, impartiality & balance
• Information sources
• Perspective sources
• Multimedia collateral & copyright
• Style
• Subediting
• Feature writing
• Research resources
• Data protection & media law
• Exeter regional democracy & governance
• Exeter regional planning & place
• Exeter regional transport & mobility
• Digital information and communications security

Guides covering other Exeter regional policy and practice areas are also being prepared.