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Agenda item

Member request for information (C4183)

Purpose: To consider a request by a Member of Council for access to information, under a procedure detailed in the Council’s Constitution at paragraph 13.3.7, seeking disclosure of an operational document setting out enforcement options in relation to a Community Infrastructure Levy Liability.

Minutes:

Council considered a report (Agenda Item 18) which set out a request by a Member of Council for access to information under a procedure detailed in the Council’s Constitution at paragraph 13.3.7. The request was seeking disclosure of an operational document setting out enforcement options in relation to a CIL liability.

 

MOTION: Proposed by Councillor Ross Mackinnon and seconded by Councillor Graham Bridgman:

 

“That Council:

1.         Notes the legal position with regard to Members rights to access information, and the limitations of that right.

2.         Confirms that, in the circumstances, the request for information should be refused.”

 

Councillor Ross Mackinnon noted that this was a request by a Member to access exempt and legally privileged information. The particulars of the case had already been the subject of a Motion to Council in December 2020 which had been responded to by Executive in March 2021. This matter related to the principle of when a Member had the right to access sensitive information and when that right should be limited. He set out how the statutory guidance was clear that Members of a principal Council did not have unrestricted rights to access documents pertaining to a decision made by the Council, the executive, its committees or officers who may be acting under delegated authority. The Local Government Acts of 1972 and 2000 and The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 all placed limitations on Members rights of access, specifically on the grounds of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

 

In this particular instance, Councillor Mackinnon explained that the Monitoring Officer, who was also the senior solicitor of the Council, had provided advice that the document contained exempt information and should not be disclosed. In addition to the statutory framework, case law (principally the Birmingham case in 1983) had established that elected Members have a right of common law to access information that they needed to know to discharge their duties as a councillor. The document in question reviewed different options open to the Council to resolve a particular matter and contained legal advice and the potential implications of the various options available. The document would remain exempt from disclosure even in the event of legal proceedings against the Council in the absence of a court order requiring it.

 

Councillor Mackinnon spoke about the decision of the Governance and Ethics Committee to refer this matter to Council. External advice had been sought from a leading public and administrative law barrister who supported the Council's position on the non-disclosure of the document since a ‘need to know’ had not been demonstrated. The Council’s Constitution also reflected the legal position he had outlined regarding the question of access to information. Of particular relevance were sections 2.3.5 (which stated that documents dealing with individuals or other confidential matters may not be available) and section 13.3.7 which dealt with the inspection of and access to documents.

 

Councillor Mackinnon also wanted to consider the implications for the business and governance of the Council if this request were to be granted. It was of fundamental importance that decision-makers within the Council had access to freely given and comprehensive advice. He argued that it was entirely proper for a full analysis to be made of the possible scenarios arising from a sensitive decision, including the financial, reputational, legal and other impacts in the event of the Council being successfully challenged. He felt it would be a serious failure of risk assessment and corporate governance not to do so. It did not follow, however, that the performing of this analysis indicated anything about the Council’s position was flawed or that relevant information was being kept secret.

 

Councillor Mackinnon felt it was absolutely crucial that those advising decision-makers within the Council were confident of that advice being kept confidential and that it would not be subject to wider disclosure. If this confidence were to be damaged it could result in advice no longer being freely given and could be influenced (at least to a degree) by the prospect of it being disclosed in a manner that may adversely impact the Council's position. Executive Members and Officers of the Council would end up no longer benefitting from the best professional advice available which Councillor Mackinnon believed was an unacceptable erosion of the good governance of the Council. He noted that a recurring theme of the various Section 114 reports issued recently by auditors of failing councils was a criticism of governance and failures to conduct proper risk assessments.

 

Councillor Jeff Brooks said this suggested to him that Councillor Mackinnon had no confidence in Councillor Rowles keeping this information confidential if she were to have sight of it which he found disgraceful. He advised Members that the resident in question had begged him and Councillor Rowles for help with this scandalous CIL situation the administration continued to stand behind. He believed there would clearly be information in this internal report to help understand what was being done with this resident, and he felt it perfectly reasonable for the steps being taken to bring this to a conclusion to be shared. He understood there was sensitive information such as a risk for people in care or under threat of violence but did not believe this passed that test. He said he would be responsible and vote for the information to be seen by all Members and would not let the matter rest if it was not voted down.

 

Councillor Rowles began by explaining this was about democracy and councillors doing the role they were elected to do, namely be the voice of residents. It was about transparency, fairness and integrity. She acknowledged that Members did not have an unqualified right of access to information and that legally privileged information was exempt. However, she argued that clause 10 of the Local Government Act 1972 set out how exempt information was only such if in all the circumstances the public interest in maintaining the exemption outweighed the public interest in disclosing the information. She believed the public had a right to know why residents were being treated differently on CIL enforcement and that it was a reasonable request. She also referred to section 13.3.6 of the Constitution which unequivocally stated where officers considered that information was of a confidential nature which should not be openly available to the public or press, this information would be supplied to Members on a private and confidential basis. Any information provided to Members on this basis would be treated as such and would not be circulated outside the Council. To deny her access when she was bound by confidentiality she felt questioned her integrity. With reference to the opinion obtained from a QC, she argued that it only seemed to focus on the ‘need to know’ point and not on section 13.3.6 or the public interest point. She pointed out all she wished to do was her job as a councillor to challenge and hold the Council to account on behalf of residents, and that closing down the request was closing down the cornerstones of democracy. She felt it set a very dangerous precedent and wondered what the Council had to hide and why there was a nervousness about the report. She highlighted that she would be making an FOI request for this information should this Motion not be supported.

 

Councillor James Coles thought there was a series of holes in the legal argument set out in the report and highlighted some examples. The whole point he felt was that Councillor Rowles was trying to establish why different criteria had been applied between two residents and officers were stopping her from doing so without acceptable reason being given. He suggested that she did have a need to know and officers should not have withheld documentation that could have been shown to her confidentially. He believed the whole matter was about telling Members not to challenge officers when the public wanted Members to do so where they deemed it necessary, and to cover up a wrongdoing by the Council. If this was the case he said it was immoral, unethical and must cease. He felt this matter should never have reached this stage and could have been resolved via a face-to-face discussion with Councillor Rowles who was just trying to determine the truth. He indicated that he would not be supporting the Motion.

 

Councillor Steve Masters noted this was a subject matter that a lot of members were very passionate about given their similar experiences with CIL. He questioned whether any councillors had been privy to the information in the document and was it therefore the case that Councillor Rowles had been particularly excluded. He also wanted to know how much more money would be spent on defending something that could be rectified by trusting Councillor Rowles. He went on to highlight the qualities of Councillor Rowles which he believed indicated her trustworthiness and integrity. He noted that when opposition Members questioned an officer the administration responded with the response that officers should not be denigrated or disrespected. He argued that this was about maximising transparency and making sure that decisions were scrutinised. He commended Councillor Rowles for bringing this matter so far as he knew it was not being done easily but felt there were times when a stand needed to be made.

 

Councillor Graham Bridgman agreed that officers should be challenged but felt that in certain circumstances officers also had to be trusted. In this case the Monitoring Officer, the Council's senior legal adviser, determined that information was exempt from production and this should be believed. As a lawyer he noted that legally privileged information needed to stay legally privileged and there was a reason for that. He said he would be horrified if, as a litigation lawyer, he discovered that advice he had given in confidence to a client had been disclosed anywhere beyond the client. He agreed that a Members right to information must necessarily be fettered and that 13.3.6 of the Constitution set out how confidential information could be disclosed in confidence to a Member. However the section explicitly referred to the Council's Access to Information rules and the position there was that exempt information was not the same as confidential information. He suggested that an FOI request on that subject would be met with the same position. Councillor Bridgman highlighted that the position of the Monitoring Officer was not that this information was purely confidential, and he felt it had nothing to do with trust or otherwise in a Member. It had everything to do with officers giving unfettered advice in the expectation it would go no further and exempt information remaining exempt. He accepted the Monitoring Officer’s determination as to it being exempt and he did not look behind that.

 

In closing, Councillor Mackinnon reiterated this was about the principle of when exempt and legally sensitive information should be disclosed. A person would not expect legal advice given to their lawyer to be disclosed anywhere else and he argued it was absurd to think otherwise. He had nothing further to add to what Councillor Bridgman had said and urged Council to support the Motion.

 

The Vice-Chairman acknowledged that Councillor Martha Vickers had left and then returned to the meeting during debate. The Monitoring Officer confirmed that Members should really be present during the whole debate in order to hear all relevant information. She had advised previously that if Members missed an introduction that was not considered an issue assuming they had read the report. She was aware that the debate had begun when Councillor Vickers had returned and her advice was that Councillor Vickers should not vote. It was ultimately a matter for Councillor Vickers to determine and the Vice-Chairman invited Councillor Vickers to take note of the advice provided by the Monitoring Officer.

 

The Motion was put to the vote and ended up tied at 16 for, 16 against, with 3 abstentions. The Vice-Chairman in his role as Chairman of the meeting used his casting vote and the Motion was duly RESOLVED.

Supporting documents: