Archived decisions

HAMPSHIRE COUNTY COUNCIL

Decision Report

1. Executive Summary

1.1 On 25 June 2009, the Audit Committee of the County Council met to consider a Report from the County Treasurer of the Annual Internal Audit Opinion 2008/9. Included within the report was a Confidential Appendix containing exempt information under Schedule 12A of the Local Government Act 1972, and which was excluded at the meeting of Audit Committee from disclosure by resolution of the Audit Committee under Section 100A of the Local Government Act.

1.2 Disclosure of exempt information is prejudicial to the effective conduct of public affairs, and detrimental to the effective delivery of the County Council's business. Unauthorised disclosure of confidential information is also potentially a breach of the Members' Code of Conduct or Officers' Code of Conduct.

1.3 Following the unauthorised disclosure of confidential information referred to at Paragraph 1.1 of this Report, the Monitoring Officer was consulted by the Chief Executive, and in her capacity as Monitoring Officer, has carried out an investigation into the matter to try and ascertain who within the County Council was responsible for the unauthorised disclosure of the confidential information.

1.4 During the course of the Monitoring Officer's investigation, certain procedures in respect of the County Council's arrangements in respect of the distribution and protection of Reports containing confidential information were identified as needing improvement.

1.5 This Report sets out the result of the Monitoring Officer's investigation. This Report also sets out proposals to improve arrangements in respect of the distribution and protection of Reports containing confidential and exempt information, and the understanding of Members and Officers of the legislative framework surrounding confidential and exempt information and business practices regarding these generally.

2. Contextual Information

2.1 The Annual internal audit opinion 2008/9 report referred to at Paragraph 1.1 of this Report is attached at Appendix 1. The Report contains (inter alia) at Paragraph 7.18 information on "Worker profiles for agency staff". Attached at Appendix 5 is an extract from the Confidential Appendix to the Report.

2.2 Also attached at Appendix 2 is a copy of a press release dated 22 July 2009 from an MP to a local radio station and attached at Appendix 3 is a copy of an article dated 30 July 2009 appearing in the Daily Echo. Members will note that both the press release and newspaper article appear to contain information drawn from the Confidential Appendix referred to at Paragraph 2.1 of this Report.

3. Members' and Officers' Code of Conduct

3.1 Paragraph 4 of the Members' Code of Conduct states:

"4 You must not

(a) disclose information given to you in confidence by anyone, or information acquired by you which you believe, or ought reasonably to be aware, is of a confidential nature, except where

(i) you have the consent of a person authorised to give it;

(ii) you are required by law to do so;

(iii) the disclosure is made to a third party for the purpose of obtaining professional advice provided that the third party agrees not to disclose the information to any other person; or

(iv) the disclosure is

(aa) reasonable and in the public interest; and

(bb)made in good faith and in compliance with the reasonable requirements of the authority; or

(b) prevent another person from gaining access to information to which that person is entitled by law".

3.2 Paragraph 2 of the Officers' Code of Conduct states that:

"2. Disclosure of information

2.1 It is generally accepted that open government is best. The law requires that certain types of information must be available to members, auditors, government departments, service users and the public. The authority itself may decide to be open about other types of information. Employees must be aware of which information their authority is and is not open about, and act accordingly.

2.2 Employees should not use any information obtained in the course of their employment for personal gain or benefit, nor should they pass it on to others who might use it in such a way. Any particular information received by an employee from a Councillor, which is personal to that Councillor and does not belong to the authority, should not be divulged by the employee without the prior approval of that Councillor

- except where such disclosure is required or sanctioned by the law".

4. Legislative Framework

4.1 The effect of the resolution of the Audit Committee on 25 June 2009 under Section 100A of the Local Government Act 1972 in respect of the exempt information contained within the Confidential Appendix means that the Audit Committee considered the public interest test in deciding whether the information in the Appendix should be kept confidential. No Member of the Audit Committee or otherwise present at the meeting raised any objections to the resolution to treat information in the confidential Appendix as exempt. Therefore in the event any Member disclosed any exempt information in respect of which the Resolution was made, prima facie there would be a breach of the Members' Code of Conduct. However, for there to be a formal complaint against a Member under the Members' Code of Conduct, a complaint against such Member would need to be received.

4.2 Similarly if an Officer disclosed such information, such Officer would be in breach of the Officers' Code of Conduct.

4.3 Any Member of Audit Committee or otherwise present at the meeting should thus have been aware that the information was given to them in confidence, and it is reasonable to assume would have believed or would reasonably have been aware, was of a confidential nature. Advice from the Standards Board and from the Adjudication Panel for England is that where a Committee has agreed unanimously to exclude information after considering the public interest and no member of the Committee has put forward any objections, as a matter of good governance an Authority should be able to rely on confidential information so remaining.

5. Investigation into the unauthorised disclosure

5.1 Letters were sent on 2 September 2009 by the Monitoring Officer to all 22 Members and Officers (11 Members and 11 Officers) present at the meeting of Audit Committee on 25 June 2009, or otherwise having access to the Confidential Appendix. Enclosed with such letters was a declaration which Members and Officers were asked to sign in relation to the unauthorised disclosure of the Confidential Information. Members and Officers were asked firstly whether they were responsible for the unauthorised disclosure, and secondly whether they had any information which might assist in the identification of the person responsible. Copies of the letters sent plus declaration is attached for information at Appendices 4 and 4A.

5.2 Signed declarations have been returned by eight Members and 11 Officers, the remaining three Members responding by email. All have stated in their replies they are not responsible for the unauthorised disclosure of the Confidential Appendix or information contained within, and have no information which might assist the enquiry into who within the Authority was responsible for the disclosure.

5.3 For there to be an investigation into the matter as a breach of the Members' Code of Conduct, a complaint under the Members' Code of Conduct must be received against a specific Member. No complaint against any specific Member has been received.

6. Other issues

6.1 Investigation into the unauthorised disclosure of confidential information has highlighted the following issues:

6.1.1 There appears to be no formal procedures in place for the governance and protection of confidential and exempt information. Whilst both the Members' Code of Conduct and the Officers' Code of Conduct place obligations on Members and Officers in respect of the unauthorised disclosure of confidential information, it is considered as a matter of good governance that a more formal Protocol should be in place to cover the day-to-day handling and security of such information.

6.1.2 This might include a procedure whereby circulation of confidential and exempt information was restricted to a named circulation list of Members of Committees and other Council and Executive meetings, named Officers supporting such meetings, and other Members and Officers on an agreed basis in line with Statutory and Common Law requirements.

6.1.3 Other initiatives for the protection of confidential information could also be put in place, such as the numbering of sets of confidential and exempt papers, and collection in of such confidential and exempt papers at the conclusion of any meeting, save in cases where a Member or Officer indicates that they wish to retain the confidential/exempt papers for business reasons, in which case a record would be made for housekeeping reasons. This is a practice in operation in a number of other Authorities.

6.1.4 It is also considered that suitable training update for Members and Officers would be helpful. This might be done by way of an `information session' and practical case study at the end of Committee and other meetings.

7. Information

7.1 Members will recall that the County Council at its meeting on 16 July 2009 approved a recommendation from the Chief Executive that as a matter of good governance, there should be a review of the County Council's Constitution to ensure best practice and continued fitness for purpose, and to ensure that it meets operational needs. This review is now well under way, and will be reported back to the County Council as soon as it is completed.

7.2 The Chief Executive and the Monitoring Officer are also currently preparing a report to Cabinet regarding issues relating to confidential and exempt information, and protocols involved.

8. Recommendation

It is recommended that Standards Committee:

8.1 Note the results of the investigation carried out by the Monitoring Officer into the unauthorised disclosure of confidential information contained within the Confidential Appendix of a Report to Audit Committee on 25 June 2009.

8.2 Approve the suggestion of the Monitoring Officer to investigate how new procedures for improved Governance and protection of confidential information might be achieved, and the putting into place of such procedures.

8.3 Request the Monitoring Officer to undertake suitable training for both Officers and Members on legal requirements, and requirements under the Members' Code of Conduct and Officers' Code of Conduct, in respect of confidential and exempt information.

8.4 It is further recommended that the Standards Committee ask the Monitoring Officer to report back to Standards Committee on the detail of such procedures, and to confirm when such training has been carried out.