Breckland District Council v The Information Commissioner & Anor. [2023] UKFTT 103 (GRC)
[1]The Council’s case is already summarised in its Reply to the Response of the Information Commissioner [“IC”] dated 10 October 2022 read with the witness statement and exhibit of Ralph Burton on behalf of the Council, and the Appellant’s Reply to the Response of the Second Respondent to the Appeal, dated 19 December 2022. Those are adopted here and not set out a second time.[2]These submissions do however amplify para 23 of the Council’s Reply to the IC’s Response to the Appeal referring to background statutory provisions in local government legislation, as well as the Local Government Transparency Code 2015 to which Mr Birt referred in his correspondence with the Council and the IC. All (save the Environmental Information Regulations 2004 [“EIR”]) of the legislative authorities in the final section of the Open bundle relate to this aspect. The purpose of citing them is to ensure that the Tribunal is aware (when considering whether the exception in Reg 12(5)(e) is engaged, and the balance of public interest) that there are, outside of the EIR, statutory structures in place designed to ensure, as regards commercially confidential information, appropriate (but not inappropriate)(1) public access to documents such as minutes recording the decisions of a local authority cabinet and overview and scrutiny committee and records of payments received in respect of assets (the very categories of documents which Mr Birt has requested be disclosed to the world at large) and(2) statutory auditor oversight and access to such documents, and public opportunity for inspection and audit intervention.[3]There are three relevant heads(1) legislation governing public access to meetings and minutes(2) legislation governing public access to accounting records and audit material, regarding payments and other yields arising from assets and(3) government guidance on transparency.[4]The body of these submissions concern the statutory materials located in the final section of the Open Bundle. Legislation governing public access to meetings and minutes Cabinet meetings and minutes[5]The Council is a district council that operates executive arrangements by having, as its executive decision-maker, a cabinet. Accordingly, sections 9G and 9GA of the Local Government Act 2000 [“LGA 2000”] apply to the cabinet. The effect of these is that, subject to regulations, it is for the cabinet to decide whether its meeting is to be in public or private (section 9G(1) and (2)) and a written record must be kept of any decision taken in private (section 9G (3)). Those written records must be made available to the public (section 9GA(1)) subject to regulations preventing the whole or part of such record or document containing prescribed information from being made available to members of the public (section 9GA(2)). So for example in the present case the public written record of the cabinet decision is set out in the (redacted) version in the Open Bundle of the Council’s letter to the Information Commissioner dated 4 May 2022.[6]The applicable regulations are the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (SI 2012/2089) [“2012 Regulations”]. They apply to decision making bodies, defined in Reg 2 as including cabinet.[7]Reg 4(2)(a) provides that the public “must be excluded from a meeting during an item of business whenever the decision-making body concerned passes a resolution to exclude the public during that item where it is likely, in view of the nature of the item of business, that if members of the public were present during that item, exempt information would be disclosed to them”.[8]Reg 12 of the 2012 Regulations requires the recording of executive decisions (with reasons) and details of any alternative options considered and rejected by the decision- making body at the meeting at which the decision was made. By Reg 14, subject to Reg 20, records under Reg 12 must be available for inspection by member s of the public, as soon as is reasonablypracticable, at the offices of the relevant local authority, and on that authority's website, if it has one.[9]Reg 20 has general application to the whole of the 2012 Regulations. By Reg 20(2)(b) nothing in the 2012 Regulations requires a local authority to disclose to the public or make available for public inspection any document or part of document if, in the opinion of the proper officer, that document or part of a document contains or is likely to contain exempt information.[10]Reg 2 defines “exempt information” as having the meaning given in section 100I of the Local Government Act 1972 [“LGA 1972”], which in turn provides that the descriptions of exempt information are those for the time being specified in Part I of Schedule 12A LGA 1972, but subject to any qualifications contained in Part 2 of that Schedule; and that Part 3 has effect for the interpretation of Parts 1 to 3 of that Schedule.[11]One such category, by para 3 in Part 1 of Schedule 12A, is “information relating to the financial or business affairs of any particular person (including the authority holding that information).”[12]By para 10 in Part 2 of Schedule 12A, information within, among others, at § 3 in Part 1 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. Overview and Scrutiny Committee [“OSC”][13]By § 10 in Part 2 of Schedule 12A, information within, among others, para 3 in Part 1 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.[14]Turning to an OSC, by section 9FA(6)(b) LGA 2000 this is to be treated as a committee of the Council for the purposes of the LGA 1972 provisions regarding public access to meetings (section 100A read with section 100E LGA 1972) and documents such as minutes (section 100C read with section 100E). That in turn brings into play the exception in respect of exempt information as defined in section 100I LGA 1972. As to that see paras 11-13 above. The public written record of the OSC decision is set out in the (redacted) version in the Open Bundle of the Council’s letter to the Information Commissioner dated 4 May 2022.[15]Accordingly, as regards meetings and minutes of cabinet and OSC, Parliament’s intention in the applicable local government legislation is that information (including that contained in minutes) relating to the financial or business affairs of any person is not required to be disclosed to the public 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.[16]One part of the request in this case is for the annual rental payments received by the Council in the ten tax years to 1 March 2021under the lease of a golf club.[17]The Council is a “relevant authority” for the purposes of the Local Audit and Accountability Act 2014 (section 2(1) and Schedule 2 para 2).[18]By section 3(1) and (2) the authority must keep records that are sufficient to show and explain the relevant authority's transactions, and to disclose at any time, with reasonable accuracy, the financial position of the authority at that time.Auditor’s powers
[19]By section 4 the authority’s accounts must be audited by an auditor, whose duties, under section 20, include (section 20(1)(c)) that the auditor must, by examination of the accounts and otherwise, be satisfied that the authority has made proper arrangements for securing economy, efficiency and effectiveness in its use of resources.[20]The auditor has wide powers of inspection and access to information and explanation, for the performance of its functions (section 22) including:(1) the right of access to local authority-related documents [“audit documents”] (section 22(1))(2) requiring persons holding or accountable for any audit document to provide information or explanation including in person (section 22(3)(3) accessing computers to inspect an audit document held in electronic form (section 22(5))(4) requiring members and officers to provide documents information or explanation where necessary (section 22(7)).[21]The auditor can issue an advisory notice (section 29 and Schedule 8) if it thinks that the authority is about to take or has begun to take a course of action which, if followed to its conclusion, would be unlawful and likely to cause a loss or deficiency (Schedule 8 para 1(1)(b)). While such notice has effect it is not lawful for the authority to take or continue to take the course of action (Schedule 8 para 3(1)9b)). Public access[22]In addition to the public’s right to inspect accounts and the auditor’s opinion thereon at any time (section 25), any person interested can, during an audit, inspect and make copies of the accounting records for the financial year to which the audit relates and all books, deeds, contracts, bills, vouchers, receipts and other documents relating to those records (section 26(2)) and any local elector can question the auditor about the accounting records (section 26(3)).[23]However, by section 26(4) this right does not entitle a person to inspect or copy any part of any record or document containing “information which is protected on the grounds of commercial confidentiality, or to require any such information to be disclosed in answer to any question”. By section 26(5) information is protected on the grounds of commercial confidentiality “if its disclosure would prejudice commercial confidentiality, and there is no overriding public interest in favour of its disclosure.”[24]Local government electors have the right to make objections during an audit (section 27).[25]Accordingly as regards ensuring (including, where necessary, by means of wide access to documents and explanations in person) that an authority has made proper arrangements for securing economy, efficiency and effectiveness in its use of resources and ensuring that an authority does not take any course of action which would be unlawful and likely to lead to a loss or deficiency, Parliament’s intention in the applicable local government legislation is that the auditor will safeguard these matters. The exclusion, in section 26(4), of the public’s access to commercial information (such as that of the authority or of a third party) where disclosure would prejudice commercial confidentiality, and there is no overriding public interest in favour of its disclosure, arises in this wider context.Government Guidance on Transparency
[26]The Local Government Transparency Code 2015 refers to commercial confidentiality in paras 20-22. Para 20 refers to contracts already entered into, such as as a result of a procurement, and envisages that publication of contracts containing confidentiality clauses will likely breach commercial confidentiality.[27]Para 21 refers to sections 100A LGA 1972 (public access to meetings, save as regards exempt information), 100B (public access to agenda packs save as regards exempt information) and 100F (members’ rights to documents relating to matters to be transacted at a meeting, including exempt information under para 3 of Schedule 12A (except to the extent that the information relates to any terms proposed or to be proposed by or to the authority in the course of negotiations for a contract). It does not expressly refer to section 100C (minutes of, say, an OSC) or the LGA 2000 (such as sections 9G and 9GA regarding a cabinet).[28]Para 22 refers to the discretion of local authorities to disclose material even if subject to an exception under the EIR or Schedule 12A LGA 1972 and states that they should start from the presumption of openness and disclosure of information, and not rely on exemptions to withhold information unless absolutely necessary”.[29]However, this guidance needs to be read in the light of the statutory background referred to above.” The Evidence: [38]. For the avoidance of doubt, Mr Birt, the Second Named Respondent, at the outset of the hearing of this appeal (listed on 17 January 2023,) and several times thereafter during the hearing, made it clear in no uncertain terms that he was not making any suggestion of malfeasance, wrongdoing, or fraud by, or on behalf of the Appellant or any Council members or staff therein. [39]. With the above helpful background, and a comprehensive opening by Counsel for the Appellant, the Tribunal heard significant material evidence fromRalph Burton (see (see §34 above) who affirmed and provided a detailed account of the reliance on the exception claimed, and the public interest arising, as follows: [40]. JO identified the full text of the original request (Open Bundle Tab 29 Page 131 & see § 5 above) and clarified the relevant redactions. The Tribunal then went into closed session while Mr Burton gave his lengthy detailed evidence on how the redacted information was subject to confidentiality provided by law, how the confidentiality provided protects a legitimate economic interest and how the confidentiality would be adversely affected by disclosure. This has been recorded by the Tribunal and I have made a section 14 order that it is not to be made available to the public, and for obvious reasons cannot be repeated in this Open decision but JO has provided a Gist summary of the evidence provided (see Annex A attached). [41]. Suffice to say the Tribunal have been persuaded without reservation that the exception at regulation 12(5)(e) EIR is engaged in relation to the redacted material that has been re redacted i.e. version 3 and which was discussed at the hearing (not the Redacted documents which were attached to the EIR response) and the public interest in withholding the relevant information outweighs the public interest in disclosure. [42]. Accordingly, The Tribual allow the appeal. [See also Appendix A “the Gist” - attached herewith.] [43]. The Tribunal wish to acknowledge the assistance of Mr Burton in the meticulous preparation and presentation of his evidence herein, Mr Birt, the Second Respondent who presented as a conscientious citizen involved in, and expressing a legitimate and honest interest on, the conduct of public affairs relating to the Councils’ business. We also wish to express our specific gratitude to counsel for the Appellant who has provided us with a detailed background to the statutory provisions that assist the public interest being served in this type of case and which will no doubt assist many other such public authorities in a similar position in the future. The Commissioner was correct to indicate that the onus is on public authorities to provide the exemptions or exceptions on which they rely and provide adequate evidence to support their reliance and evidence of where the public interest is said to prevail. Brian Kennedy KC. 23 January 2023 Promulgation Date : 03 February 2023