Access to Information in Local Government: The Jigsaw Puzzle
By Meredith Cook
Reproduced by permission of the Public Management and Policy Association.
The Freedom of Information Act 2000 (FOI Act) creates a new legislative framework for access to all public sector information. The Office of the Deputy Prime Minister (ODPM) is currently reviewing access to information in local government and considering whether greater consistency between the FOI Act and local government legislation—some of which has been in place for three decades—is necessary. In a statement in July 2003, Nick Raynsford, Minister for Local Government, Regional Governance and Fire, said that the Government wants ‘a system which promotes a culture of openness throughout councils, which delivers accountability and transparency in decision-making and equally guarantees the protection of information such as personal details where this is necessary’. In the meantime, local authorities need to understand how the jigsaw puzzle fits together so they can prepare for 1 January 2005 when all public bodies must comply fully with the FOI Act.
The Jigsaw Puzzle
Five pieces of legislation govern access to information held by local authorities: Part VA of the Local Government Act 1972; The Local Government Act 2000; The Data Protection Act 1998; The Environmental Regulations 1992; and the FOI Act. There are also hundreds of specific provisions requiring or prohibiting disclosure covering the range of local authority activities; for example, a local authority must keep a register of street works (The New Roads and Street Works Act 1991). An out of date list of all provisions requiring disclosure is in the Local Government (Inspection of Documents) (Summary of Rights) Order 1986. The ODPM consultation addresses whether this list should be updated.
Part VA of the Local Government Act 1972 This Act was amended in part by the Local Government (Access to Information) Act 1985, since when the public has had a right of access— subject to certain exemptions—to meetings and documents of the council, committees or subcommittees. Schedule 12A of the 1972 Act sets out 15 discretionary exemptions tailored to local government. It also prohibits access to documents or meetings where information would be disclosed in breach of that confidence. Members are given additional rights of access to documents. Local authorities are very familiar with the provisions of Part VA and routinely make information available within this framework.
The Local Government Act 2000 The new arrangements under this Act incorporate openness as part of the drive for greater accountability in decision-making. The Secretary of State’s guidance to local authorities on the Act states: ‘The principal aims of executive arrangements are to make decision-making more efficient, transparent and accountable so that local authorities can be more open and responsive to the needs and aspirations of communities they serve. Central to executive arrangements there will need to be effective access for the public to decision-making and decision-makers’. Regulations made under the Act require public authorities to allow the public access to ‘key decisions’ and ‘forward plans’ and records of executive decisions. The Regulations are very prescriptive and tailored specifically to the local government context.
The Data Protection Act 1998 This gives individuals a right of access to information about themselves and governs the collection, storage and processing of personal information. It applies to electronic and manual data (i.e. on paper) held in structured files. In 2005, it will apply to all manual data. Local authorities are used to dealing with subject access requests under the Data Protection Act. This does not change. In addition, the FOI Act will give individuals rights of access to personal information about other people where disclosure would not breach the Data Protection Act. For example, FOI legislation in other jurisdictions has enabled access to the names of officials seconded to public sector organizations from the private sector.
Environmental Information Regulations 1992 WEIR 1992 (amended in 1998) gives everyone access to environmental information as defined in the Regulations. The Department for the Environment, Food and Rural Affairs is working on new regulations which will align the existing framework with the FOI Act.
Open Government: A Good Practice Note on Access to Information In 1995, the then Associations of County Councils, District Councils and Metropolitan Authorities published this good practice note. It is now within the remit of the LGA, which is planning to review and revise it to align with the FOI Act. The note recommends local authorities adopt a policy statement declaring their commitment to openness and providing access to information, rather than only allowing access to the agendas, reports and background papers covered by Part VA of the 1972 Act. FOI Act The FOI Act creates an over-arching framework for access to all information, held by public authorities. The FOI Act does not come fully into force in January 2005, but local authorities should already have an operational publication scheme. An Information Commissioner with broad powers enforces the Act.
This Act is wider in scope than the 1972 and the 2000 Acts and goes further than simply giving rights of access to meeting documents. It gives a statutory right of access to all information held by a local authority. This right of access is subject to a substantial number of exemptions, but many are not relevant to local government.
The FOI Act ‘trumps’ Schedule 12A of the 1972 Act exemptions because, while it excludes the disclosure of information ‘prohibited by any other enactment’, the exemptions in Schedule 12A are discretionary. There is one mandatory exemption in the 2000 Regulations relating to information given in confidence but this only covers information given in confidence to the authority by a government department.
There is a mechanism in the FOI Act for the repeal of prohibitions on disclosure. The Department of Constitutional Affairs is currently working on a project to repeal as many prohibitions as possible (see www.lcd.gov.uk for an interim report). Unless repealed, hundreds of prohibitions on disclosure scattered across the statute books could significantly weaken the operation of the FOI Act. It would make sense for local authorities to include prohibitions on disclosure in publication schemes.
Towards Implementation of the Act
The UK’s FOI Act has the longest implementation period of any country that has passed access legislation. The Department of Constitutional Affairs, the Local Government Association and the Information Commissioner are all considering what guidance and support should be made available to public authorities. In the meantime, there are steps that authorities can take now to prepare for 2005.
Some of the implementation issues to consider are:
•How should your authority be structured to handle data protection, freedom of information and records management in a co-ordinated way?
•What work must be carried out to bring records management systems and practices up to scratch before 2005?
•Which staff need training in access issues, to what level and by when?
•What information should you collect about the operation of your publication scheme and what amendments are needed?
•Who are likely to be your biggest users of the FOI, what information are they likely to want (for example local media, contractors, the general public)?
•What procedures do you need to deal with requests?
The FOI Act presents a real opportunity to engage stakeholders, develop trust and make decision-making more efficient, transparent and accountable. As the Information Commissioner is repeatedly saying, now is the time to ‘get your Act together’
Macdonald, J. and Jones, C. (2003), (Eds), The Law of Freedom of Information (Oxford University Press). See chapter 15, which deals in detail with local government.
Local Government Association/Constitution Unit (2001), Freedom of Information: Practical Guide to the Freedom of Information Act 2000 for Local Authorities, available from the LGA (see www.lga.gov.uk ).
Local Government Act 2000, New Council Constitutions Guidance to English Local Authorities (see http://www.local-regions.odpm.gov.uk/ncc/guidance/index.htm ).
Watch this Space! Access to information in local government is currently in a state of flux. For example consultations closed in December 2002 on Access to Information in Local Government. The consultation paper examined current access arrangements and sought views on alignment with FOI. ODPM has convened a review group to carry this work forward. See http://www.local-rgions.odpm.gov.uk/consult/review/index.htm
In addition, the Law Commission will report back in late 2003 on 57/52 Publication of Local Authority Reports. The focus of the consultation paper and report is on release of enquiry results. But the report will also consider the implications of FOI for publication of reports. See Appendix B to the paper which includes a useful summary of existing arrangements (http://www.lawcom.gov.uk/564.htm#57/52).
The Constitution Unit, University College London (www.ucl.ac.uk/constitution-unit/foidp). Includes links to useful resources, summaries of latest developments and a free F OI newsletter. The Constitution Unit has a team of experts in FOI and data protection issues. The Unit carries out research, runs a range of FOI and data protection conferences and events and offers training and consultancy services. The Unit will be running a conference on access to information in local government on 15 October 2003—see their website for details.
Local Government Association (go to www.lga.gov.uk and follow links to ‘our work’, ‘better local government’, ‘foi’). The website has links to all the local government publication scheme pilot authorities.
Association of Council Secretaries and Solicitors (ACSeS) (www.aces.org.uk). See the ACSes paper on the LGA website on the corporate implications of FOI.
National Archives http://www.nationalarchives.gov.uk/footer/freedom.htm ). National Archives has prepared a model action plan for local authorities for developing records management compliant with section 46 of the FOI Act.
Department of Constitutional Affairs (www.lcd.gov.uk).
The Information Commissioner (www.informationcommissioner.gov.uk).
The Campaign for Freedom of Information (www.cfoi.org.uk). See particularly the Campaign’s detailed response to the 2001 ODPM consultation paper on access to information in local government.
Meredith Cook, Research Fellow, The Constitution Unit, University College London can be contacted at email@example.com
The Constitution Unit site is: www.ucl.ac.uk/constitution-unit/foidp