appendix b

Access to information

Introduction

B.1                                      In this Appendix, we turn our attention to the various statutory regimes which govern access to information held by a local authority. In contrast to our approach in the body of the consultation paper, we discuss the issue from the position of the potential litigant who wishes to make a claim against the local authority. Hence our focus is on what rights a private individual has to information held by the local authority, in contrast to the duties placed upon a local authority in its control and use of that information.

B.2                                      We focus particularly on the right of an individual to gain access to two crucial sources of information. These are:

B.3                                      Transcripts under the control of the local authority would be those produced during the course of an internal investigation, rather than an independent inquiry. Where an inquiry is independent, we believe that only the report will be presented to the authority.

B.4                                      The reason why these issues are being addressed in an appendix rather than the main body of the consultation paper is because they are somewhat tangential to the main thrust of the legal issues that we examine. Our terms of reference direct us towards the publication of reports of ad hoc inquiries.[1] Here we are concerned with pre-publication access, not only to the final report itself but also to transcripts that are used to support the report’s conclusions. If a right of access is granted to the public, this will impose a parallel duty upon the authority to transmit that material. Hence there is little use in insurers seeking to prevent formal publication of material at a later date if the authority is already subject to a legal obligation to supply it.

B.5                                      The right of access to information controlled or in the possession of the local authority has a bearing on the question of admissions of liability. Rights to transcripts of evidence received in private, if released to members of the public, might contain admissions of fact or liability that would be of great relevance to any future claim against the council.

B.6                                      Similarly, rights of access impact on the law of confidentiality.[2] If material must be disclosed then any argument against disclosure that the authority advances, based on the confidentiality of that material, is likely to be undermined. As confidentiality is a pre-requisite to claims of legal professional privilege, a general right of access to that confidential information would preclude the claim.[3]

B.7                                      Defamation issues may also arise where material is subject to a public right of access. Publication is a necessary condition of a defamation action.[4] Publication entails communication by the defendant of the defamatory matter to a third party, that is, to someone other than the claimant. Therefore where a local authority transmits a defamatory statement to someone other than the person defamed in that material, a libel action might lie.

Summary overview of access rights

B.8                                      Access to information held by a local authority is governed by three statutory regimes. These are the Local Government (Access to Information) Act 1985, the Data Protection Act 1998 and the Freedom of Information Act 2000. These last two Acts are not fully implemented, with the result that the current legal position is somewhat in a state of flux. In addition, local authorities now may operate under a traditional committee structure, or under new executive arrangements as laid down by the Local Government Act 2000. These new arrangements have significantly changed the ways in which local councils take, and scrutinise decisions. The Department of Transport Local Government and the Regions (DTLR) will be undertaking a review of access to information held by local authorities with a view to dovetailing the provisions of the three Acts, so as to provide a comprehensive and clear code for disclosure of information to the public.

B.9                                      The Freedom of Information Act 2000 enacts a presumption of access for information held by a public authority unless an exemption is applicable. This is the first time that a general “right to know” has been imposed on all public authorities. For local government, however, the impact of the Act is not as dramatic as for other public bodies such as central government. The Local Government (Access to Information) Act 1985 already contained a prima facie right of access to reports held by the authority where the report and related documents are to be discussed in a meeting of the council.

B.10                                      All three statutes are subject to exemptions. These may be mandatory, discretionary, absolute or involve the application of a public interest test. The exact scope of these exemptions is explored in greater detail below. The types of exemption that are potentially applicable to reports and transcripts, when all the Acts are in force, can be categorised thus:

B.11                                      The subject matter of local authority inquiries would suggest that it is likely that an exemption could apply to prevent access to the report and evidence received. Thus a right of access to either the transcripts of the inquiry or the finished report is likely to be the exception rather than the norm.

B.12                                      In spite of this, it is important to recognise that occasionally no exemptions may apply to an inquiry report and transcript. This may arise where the subject matter is not particularly sensitive, no issues of confidentiality or privilege arise and criminal offences are not at issue. Such an inquiry may be, for example, into why a particular team or department is performing particularly well, with the aim of disseminating best practice. For this reason alone, it is useful to outline the rights available to members of the public.

B.13                                      This Act inserted a new Part[5] into the Local Government Act 1972 to govern the rights of members, the press and public to principal[6] local authority meetings and documents. Under the scheme, meetings of these authorities must be open to public and press;[7] the agenda, reports and background papers must be available to the public and press three clear days before the meeting.[8] Information is defined to include “an expression of opinion, any recommendations and any decisions taken”.[9] Background papers are defined as:

those documents relating to the subject matter of the report which

(a)disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and

(b)have, in his opinion, been relied on to a material extent in preparing the report,

but do not include any published works.[10]

B.14                                      “Reports” in this context will include a report produced by an ad hoc inquiry. It is likely to include recommended courses of action, and expressions of opinion of the inquiry team for discussion by the commissioning body. Any report of an inquiry will normally be accompanied by the relevant officer’s report responding to the inquiry’s findings. Again, this must be considered by the commissioning body in order that the inquiry report be noted in the minutes, or endorsed by resolution.

B.15                                      The definition of a background paper could include transcripts of evidence given to an internal inquiry. The evidence would obviously relate to the subject-matter of the report, and, if the inquiry reached defensible conclusions based on the evidence received, the transcripts would reveal facts and be relied upon, at least to a material extent, in the production of the report of the inquiry. It is unlikely that the authority would be provided with the transcripts of the inquiry where an external panel undertook the investigation; hence these would not be included within the definition of a background paper.

B.16                                      The Local Government 2000 Act introduced new models of working for local authorities. Instead of the present system based upon decision-making by the council and committees, three new models were proposed. These were: (1) a mayor and cabinet executive, (2) a leader and cabinet executive, and (3) a major and council manager executive.[11]

B.17                                      Where a local authority discharges its executive functions under the new models, new regulations apply to govern access to information and decisions made by members of the executive.[12] For members of the public, the regulations do little more than transfer the previous arrangements governing access to meetings and documents. There is however increased access to documents for members of overview and scrutiny committees. A similar definition of a background paper is given.[13]

B.18                                      We consider that background papers listed in accordance with the Act will similarly include any transcripts of evidence in the possession of the local authority. Therefore the public will have a prima facie right to the report and transcripts of evidence if they are to be debated by the council, operating either under the committee structure or the new executive models.

B.19                                      However, this right is not absolute. The right of public inspection under the Act and the regulations is subject to two categories of exemptions. First, press and members of the public do not have a right to see any documents or attend any meetings[14] where confidential information would be disclosed in breach of that confidence.[15] Secondly, public inspection may be refused if the subject matter of the information falls within a category listed in Schedule 12A to the Local Government Act 1972.[16] These qualifications are applicable regardless of whether the authority is discharging its functions under the committee structure or a new executive model.

Breach of confidence

B.20                                      “Confidence” is defined, for the purposes of the section, as:

(2)information the disclosure of which to the public is prohibited by or under any enactment or by the order of a court.[17]

B.21                                      This definition of confidence is narrower than the common law definition of confidentiality, which we examine in Part V.[18] This is because a breach of confidence at common law encompasses more than disclosure forbidden by a statute or by an order of the court.[19] “By the order of a court” in this context refers to a specific instance, such as an injunction, where disclosure has been prohibited. This will not protect those who write, for instance, to the council “in confidence.”[20]

Exempt information

B.22                                      Schedule 12A to the Local Government Act 1972 lists the types of material that may be exempt from the requirement to grant the public the right of attendance or access to the information to be discussed at the meeting. The most relevant categories, for our purposes, are:

(1)information relating to past or present employees or office holders of the local authority;[21]

(2)information relating to recipients of any service provided by the local authority;[22]

(3)information relating to the adoption, care fostering or education of any particular child;[23]

(4)instructions to, and advice received from, counsel on existing or contemplated proceedings or determinations (ie administrative hearings such as inquiries);[24]

(5)action in connection with the prevention, investigation or prosecution of crime;[25]

(6)the identity of a protected informant.[26]

B.23                                      In order to engage the Schedule 12A exemptions, a resolution must be passed[27] which identifies the proceedings, or parts of proceedings, to which it applies, and the type of exemption that is being sought.[28] Hence the Schedule 12A exemptions are discretionary, whereas the first type of exclusion, based upon confidentiality, is mandatory.

B.24                                      Unless the material that contains the admission is exempt from disclosure by virtue of the confidentiality requirement or the applicability of a Schedule 12A exemption, any potential claimant will be able to have access to the report or the transcripts. However, it is likely that many reports of, and transcripts of evidence received at, inquiries will be covered by one or more of the exemptions. The areas of local authority business that are particularly susceptible to an ad hoc inquiry, such as abuse in council-run homes, harassment at schools, the provision of accommodation by the authority or allegations of misconduct by members, officers or employees will be covered at least in part by one or more of the Schedule 12A exemptions.

B.25                                      The DTLR is currently revising the exemptions set out in Schedule 12A to the Local Government Act 1972 in order to bring them in line with the Freedom of Information Act 2000. The proposed changes, which were subject to consultation between 11 May and 30 June 2001, involve tightening up the categories of exemptions listed in Schedule 12A. The overwhelming response to the consultation exercise was that the current exemptions needed to be dovetailed with the Freedom of Information Act 2000 scheme. A comprehensive review of Access to Information in Local Authorities is planned for summer 2002.

B.26                                      The 1996 Defamation Act grants qualified privilege to a fair and accurate copy or extract from any document required by law to be open to public inspection.[29] Therefore where the report must be open to inspection, in accordance with the public’s right of access to local authority papers,[30] the supply of that information will attract qualified privilege.

B.27                                      In addition to this right under the Defamation Act itself, the Local Government Act 1972, section 100H(5) grants a defence of qualified privilege to any transmission of an “accessible document.” This is defined to include any copy of the whole or part of a report,[31] or background paper[32] for the meeting.

B.28                                      The regulations for the access to information and meetings of local authorities under the new executive structures provide that where information is to be open for public inspection,the documents will similarly attract qualified privilege.[33]

B.29                                      There is no statutory qualified privilege where the material need not be open to inspection, due to a mandatory confidentiality exemption or a Schedule 12A exemption – for instance, where information relating to employees or the identity of whistleblowers is disclosed – applying.[34] These exemptions are most likely to be engaged where the subject matter is particularly sensitive – for instance, inquiries into maltreatment of the elderly or allegations of assault by school teachers.[35] But it is exactly these types of reports that are more likely to contain defamatory statements. Thus where the report alleges that a person is guilty of a criminal offence, for example, of assault, that statement is defamatory.[36] In a similar manner, imputations on the character of an employee of the council, or a statement that that person lacks some essential quality to carry on the office, trade or profession successfully, are defamatory.[37] The reports which would benefit most from a statutory defence of qualified privilege are thus not covered by the defence.

The Data Protection Act 1998

B.30                                      Although we examine the Data Protection Act 1998 and the Freedom of Information Act 2000 sequentially, it is apparent that there is a certain amount of interaction between the two Acts. Similarly, some provisions of both Acts are already in force, with other parts still awaiting implementation. The discussion will focus primarily on the rights that individuals have at present under the two regimes. It will become apparent that the more substantive rights are not currently in force, and so we include a brief overview of the rights that can be anticipated.

B.31                                      The substantive parts of the Data Protection Act entered into force on 1 March 2000.[38] The Act implements a European Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data.[39] The Data Protection Act also gives effect to the judgement of the European Court of Human Rights in Gaskin v United Kingdom[40] concerning the right of access to social work records. The Act imposes obligations upon those who hold and process data to act in accordance with the Six Data Protection Principles. Additional obligations are imposed when the data in question is “sensitive.”[41] The application of these Principles is limited to the use of that data by the authority and is therefore separate from the right of access to that data by the individual.

B.32                                      Guidance on the Act has been produced both by the Data Protection Commissioner and central government. Section 51(1) imposes a duty on the Data Commissioner to promote good practice under the Act, who has produced legal guidance to that end.[42] The Department of Health has produced guidance which addresses the issues surrounding sharing of data between authorities in the context of social services,[43] and other departments have similar summaries of the Act’s impact on their websites.

B.33                                      The Data Protection Act currently applies to automated data, data forming a filing system, health, educational and public records.[44] The Freedom of Information Act 2000 will extend the scope of the Data Protection Act 1998 to all recorded information held by a public authority from January 2005.[45]

B.34                                      The definition of data, prior to 2005, will not include transcripts or inquiry reports. This is because such information will not be “automated”[46] or incorporated into a filing system, due to the ad hoc nature of the inquiry. Neither will the transcripts of evidence, nor the inquiry itself, constitute health, educational or public records, even though these records may be referred to by those giving evidence to the inquiry.

B.35                                      However, when the broader definition of personal data is engaged in January 2005, transcripts or reports of inquiries will be subject to the regime, as they will be recorded information held by the local authority.

B.36                                      The right to information under the 1998 Act is limited to personal data held in relation to the individual. The individual must write to the authority requesting the information; if the authority has the information it must tell the individual and communicate the data to him or her in an intelligible manner.[47]

B.37                                      If the material relates to a second, identifiable individual, the authority must not supply that information unless the second party has consented, or it is reasonable, in all the circumstances, to comply with the request without their consent.[48] In determining whether it is reasonable to supply the information, the authority must pay due regard to any duties of confidentiality owed to the other individual, the steps taken to secure consent, their capacity to give that consent, and any express refusal of consent by the other individual.[49]

B.38                                      As the operation of the Act is limited to personal data, its provisions are unlikely to be of particular use to an individual who is seeking access to a report. The report of the inquiry will not concern itself solely with one particular individual.

B.39                                      However, the Data Protection Act 1998 may be of use where an individual is seeking to gain access to a transcript of a witness to the inquiry. If the individual gave evidence to the inquiry, which related only to him, that will be personal data held in relation to him; hence, subject to the exemptions discussed below, it must be communicated to him. Similarly, if an individual sought access to a transcript of someone else’s evidence which referred solely to the individual, this would be personal data about the individual to which he would have a right of access.

B.40                                      Where the evidence given relates to a second, identifiable person, then disclosure is not automatic. If a recipient of a service provided by the authority merely gave evidence about his personal circumstances, this would, subject to the exceptions below, be information that the individual had a right of access to. But if the individual gave evidence which identified, for example, particular social workers, then the authority will have to exercise its discretion in deciding whether to disclose the information.

B.41                                      If the evidence was given by another person, and referred not only to the individual seeking the information but referred as well to identifiable other people, then their consent would need to be obtained. In the absence of consent, the authority will have to weigh the factors set out in paragraph B.37 above in order to determine whether or not the data is communicable.

B.42                                      One of the key factors in deciding whether or not to disclose the transcript will be any duties of confidentiality owed to the individual. Therefore if the inquiry guaranteed to the witnesses that the information provided would be treated as confidential, then this duty would weigh against disclosure to the individual. The reason why we believe many local authority ad hoc inquiries receive evidence in private is to guarantee confidentiality to the witnesses. Thus it is likely that the authority can refuse to disclose the information where doing so would undermine the guarantee of confidentiality given to witnesses.

B.43                                      Even if the individual does have a prima facie right to the data, the broad obligation to communicate the data is subject to limitation. Part IV of the Data Protection Act 1998 lists the categories of excluded matters. The exemptions are:

(1)national security;[50]

(2)crime and taxation;[51]

(3)health, education and social work;[52]

(4)regulatory activity;[53]

(5)journalism, literature and art;[54]

(6)research, history and statistics;[55]

(7)Parliamentary privilege;[56]

(8)domestic purposes.[57]

Health, education and social work

B.44                                      The most relevant category of exemptions for our purposes is the health, education and social work exemption. Section 30 enables Orders to be made which remove the duty to disclose information to an individual.[58] Three Orders have been made under section 30.[59]

B.45                                      Under the Health Order, there is no duty to disclose information where the information is a report or other evidence to be supplied to a court for the purposes of health, wardship or childcare proceedings, such as care proceedings under the Children Act 1989.[60] In addition, where disclosure is likely to cause serious harm to the physical or mental health or condition of the individual, or of any other person, the information will not be divulged.[61] The Education Order exempts similar material from the disclosure obligation.[62]

B.46                                      The Social Work Order exempts from disclosure data held by a local authority in connection with its social services functions, and data held in the exercise of other functions but obtained or consisting of information obtained in connection with any of those functions.[63] Hence any data that is collected by the authority in pursuance of its social services functions, even if it is personal to the individual, is not to be disclosed under the Data Protection Act.

B.47                                      In addition to the specific power to make regulations under section 30, section 67 of the Data Protection Act 1998 confers a general power to make further orders under the Act. The Data Protection (Miscellaneous Subject Access Exemptions) Order 2000[64] was enacted under this power and exempts certain further categories of record from the right of access provisions. These are: human fertilisation and embryology information in the United Kingdom; information contained in adoption and parental order records and reports, and statements and records of the special educational needs of children in England or Wales.

Regulatory activity

B.48                                      Under the regulatory exemption,[65] information need not be disclosed where it is likely to prejudice the proper discharge of functions which are designed to protect certain groups. A relevant function is defined as:

(1)any function conferred on any person by or under any enactment,

(2)any function of the Crown, a Minister of the Crown or a government department, or

(3)any other function which is of a public nature and is exercised in the public interest.[66]

B.49                                      Hence where the local authority is charged with a function exercised in the public interest, which is designed to protect certain groups, and disclosure of the personal data would prejudice this, the material need not be disclosed. Obviously this may overlap with the Orders made under section 30.

B.50                                      There is no explicit mention of any defence to a defamation action in the Data Protection Act. However, paragraph 5 of Part I Schedule 1 to the Defamation Act 1996 grants qualified privilege to a fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.

B.51                                      Thus, where a communication is made in accordance with the Act, the transmission of that copy of the data, so long as it is fair and accurate, will benefit from a defence of qualified privilege. This will apply notwithstanding the lack of any explicit mention of qualified privilege as a defence to defamation in the Data Protection Act itself.

B.52                                      From January 2005, members of the public will be able to request that a local authority communicate to them any information in its possession.[67] “Information” is defined as “information recorded in any form.”[68] Where information is personal in nature, access to that information will be governed by the Data Protection regime.[69] A refusal to transmit the information will be reviewed by the Information Commissioner,[70] with a right of appeal to the Information Tribunal.[71]

B.53                                      Reports and transcripts will not be communicated at all if the transmission of the information would constitute an actionable breach of confidence.[72] Hence where guarantees of confidentiality have been given to witnesses, the information must not be divulged where the common law duty of confidentiality is engaged.[73] This exemption is inapplicable where there have been no such guarantees or the common law duty of confidentiality has not been engaged.[74]

B.54                                      Public access to the report may be withheld if the report is intended for future publication where the public interest in withholding the information is greater than the public interest in granting immediate access.[75] This is likely to be applicable where the publication of the report is timed to coincide with press releases and any responses to the report’s findings. Birkinshaw comments that “This is a useful device to prevent access to information where a matter is under internal investigation and report, and eventual publication”.[76]

B.55                                      Public access to reports and transcripts may be withheld if the transmission of the information would endanger the physical or mental health, or safety of any individual;[77] the material is legally privileged;[78] or disclosure would prejudice the commercial interests of a local authority-controlled company;[79] and, with due regard to all the circumstances of the case, the public interest in withholding the information outweighs the public interest in disclosing the information.[80]

B.56                                      Where the subject-matter is particularly sensitive, it will be more likely that the public interest in withholding the information will be satisfied. It is envisaged that the exemptions of legally privileged information and trade secrets will not be applicable as often as the health and safety category.

B.57                                      In any event, the decision on whether or not to disclose the information may be reviewed by the Information Commissioner, with a further right of appeal to the Information Tribunal.[81]

Defamation

B.58                                      Section 79 of the Freedom of Information Act 2000 states that

B.59                                      Thus any communication made under the Freedom of Information Act 2000 will benefit from qualified privilege to a defamation action. This provision states explicitly, in the context of the Act, the effect of paragraph 5 Schedule 1 to the Defamation Act 1996.

B.60                                      Hence, where an individual has a right of access to certain information under the Data Protection Act 1998, or the Freedom of Information Act 2000 the authority could not rely on the Schedule 12A exemptions. This ties in with section 78 of the Freedom of Information Act 2000,[82] which prevents the 2000 Act from limiting existing rights of access under other enactments.