HAMPSHIRE COUNTY COUNCIL

Decision Report

1. Executive Summary

1.1. As a consequence of operating Executive arrangements (`the Cabinet System'), the County Council is required, in accordance with Section 37 of the Local Government Act 2000 ("the 2000 Act"), to prepare, keep up-to-date, and publicise a Constitution. The County Council's Constitution was adopted in March 2001, and has been updated from time to time as a result of changes in the law and the Council's own procedural requirements. At its meeting on 16 July 2009, the County Council recognised that as a matter of good governance, a review both of the Constitution and business practices generally should now take place, and both are underway.

1.2. Part of the review of the Constitution focuses on procedures in respect of access of Members and Officers to reports containing exempt information. This report sets out the legal position in respect of rights of access to exempt information, and suggests that as a matter of good governance, the County Council should develop from the legal position a set of business protocols relating to the distribution of exempt information, consistent with it being a modern business providing public services.

1.3. This report also informs Members of the outcome of a report to Standards Committee on 30 October 2009 regarding the investigation of the Monitoring Officer into the unauthorised disclosure of exempt information contained within an Appendix to a confidential report to Audit Committee on 25 June 2009. A copy of this report and recommendations from the Standards Committee are attached at Appendix 1.

2. Legal position - Access to reports containing Exempt Information

2.1. The legal position regarding rights of access of Members to exempt
information is a combination of Statutory Law and Statutory Guidance, and
Common Law.

2.2 Statutory Law and Statutory Guidance

The position varies somewhat depending on whether the information
relates to Council/Committee documents, Executive Decision Documents, or whether the documents relate to the work of Overview and Scrutiny Committees.

2.3 Council/Committee Documents

2.3.1 Under Section 100F(1) of the Local Government Act 1972 ("the 1972 Act") any Member of the County Council has a right to inspect any documents relating to a meeting of the County Council, or Committee or Sub-Committee of the County Council. However, this right is subject to the provisos contained at Sections 100F(2) and (2A) of the 1972 Act, whereby notwithstanding the general right of access of Members to documents at Section 100F(1), if it appears to the "Proper Officer" of the Council that a document discloses exempt information, there is no requirement for such document to be open to inspection unless the information contained within the document falls within paragraph 3 of Schedule 12A to the 1972 Act ("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"), or Paragraph 6 of Schedule 12A. Information falling within Paragraphs 1, 2, 4, 5 and 7, or otherwise within Paragraph 3 of Schedule 12A to the 1972 Act, is always exempt where it appears to the "Proper Officer" of the Council that such information discloses exempt information of a description falling within any such paragraph.

2.3.2 "Proper Officer" is, by virtue of Section 270 (1)(3) of the 1972 Act, the officer of the Authority appointed for the purpose. In the County Council, the Monitoring Officer is appointed as the "Proper Officer" in respect of Access to Information by virtue of Part 1 Chapter 12 Paragraph 12.4(f) of the Constitution.

2.3.3 Paragraphs 1-7 of Schedule 12A to the 1972 Act, and examples of information which might fall within such paragraphs are set out as follows:

1) Information relating to any individual e.g. appointment of staff

2) Information which is likely to reveal the identity of an individual

3) Information relating to the financial or business affairs of any particular person (including the authority holding that information) e.g. land disposals, confidential audit reports

4) Information relating to any consultations or negotiations, or contemplated consultations or negotiations, in connection with any labour relations matter arising between the authority or a Minister of the Crown and employees, or office holders under the authority e.g. details of pay and benefit disputes

5) Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings e.g. legal advice.

6) Information which reveals that the authority proposes -

a) To give under any enactment a notice under or by virtue of which requirements are imposed on a person; or

b) To make an order or direction under any enactment e.g. Statutory notices

7) Information relating to any action taken or to be taken in connection with the prevention, investigation or prosecution of crime e.g. criminal investigations.

2.3.4 It should be noted that information falling within any of paragraphs 1-7 of Schedule 12A of the 1972 Act 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.

2.3.5 There is thus a statutory right of inspection to documents falling within paragraphs 3 and 6 of Schedule 12A, notwithstanding a resolution might have been passed exempting the documents (subject to the specific proviso in relation to information falling within paragraph 3 as indicated above) for all Members. This is despite the fact that in the case of members of the public, all documents falling within paragraphs 1-7 of Schedule 12A of the 1972 Act are exempt if an appropriate resolution has been passed.

2.4 Executive Decision Documents

2.4.1 Similar provisions apply in respect of Executive Documents by virtue of Regulation 17 of the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000 ("the 2000 Regulations"). Any Member of the County Council is entitled to see any Executive Member documents, save for (by virtue of Regulation 17 (2) exempt information as described in Schedule 12A of the 1972 Act). However, by virtue of Regulation 17(3) of the 2000 Regulations, exempt information falling within Schedule 12A is then subject to the same provisos as in the 1972 Act, and thus where the information falls within paragraph 3 of Schedule 12A (save where the information relates to any terms proposed or to be proposed by or to the authority in the course of negotiations for a contract), or falls within paragraph 6 of Schedule 12A, the information must still be disclosed.

2.4.2 Again by virtue of Regulation 17 (3), the "Proper Officer" is designated under the Regulations as the Monitoring Officer.

2.5 Members of Overview and Scrutiny Committees

2.5.1 Additional rights of access are given to Members of Overview and Scrutiny Committees. By virtue of Regulation 18(1) of the 2000 Regulations, a Member of an Overview and Scrutiny Committee is entitled to a copy of any document which is in the possession or under the control of the Executive, and contains material relating to any business transacted at a private or public meeting of a decision-making body of the Authority, or any decision made by an individual Executive Member, or any key decision made by an officer in accordance with any delegated powers.

2.5.2 However, by virtue of Regulation 18(2) of the 2000 Regulations, this right does not apply to any document or part of a document which contains exempt or confidential information unless that information is relevant to an action or decision such Member of an Overview and Scrutiny Committee is reviewing or scrutinising, or which is relevant to any review contained in any programme of work of such Overview and Scrutiny Committee or Sub-Committee of such Committee. "Confidential Information" and "Exempt information" have the same meaning as in the 1972 Act.

2.5.3 There are otherwise no exemptions to the rights of access to documents for Members of Overview and Scrutiny Committees. Thus provided the document relates to the work of the Overview and Scrutiny Committee (as per Regulation 18(2) above), any document of the Executive is open to inspection.

2.5 Statutory Guidance

2.6.1 Statutory Guidance, `New Council Constitutions; Local Government Act 2000 Guidance to English Local Authorities' ("the Guidance") was issued in 2000 when authorities were determining the detail of their Executive arrangements. The Guidance gives advice on the operation of new Executive arrangements, and the content of Councils' Constitutions. By virtue of the provisions of the Local Government Act 2000, Authorities are obliged to have regard to the Guidance.

2.6.2 Chapter 10 Paragraph 10.7 of the Guidance states that in drawing up and in operation of their Constitutions, Authorities should have regard to "principles for efficient, transparent and accountable decision making and access to information about decision making including procedure rules for decision making and access to information in respect of the whole Council (and its committees and sub-committees), the executive, overview and scrutiny committees and officers".

2.6 Common Law

2.6.1 By virtue of Section 100F(5) of the 1972 Act, and Regulation 17(5) of the 2000 Regulations, rights confirmed by Section 100F and Regulation 17 are in addition to any other rights Members might have. The most important rights are those existing at Common Law.

2.6.2 At Common Law, a Member has a "prima facie" right to inspect documents which are addressed to the County Council of which he is a Member. This right exists because Members are under a duty to keep themselves informed of Council business which relates to their role as elected representatives, and which they have "a need to know". If a Member's motive for seeing documents is indirect, improper or ulterior, this may be raised by the County Council as a bar to their entitlement. Members are not, therefore, allowed a "roving commission" through County Council documents.

2.6.3 There is no logical distinction between access to documents and attendance at meetings where exempt information is discussed. Thus, when an exempt item is discussed, and Members do not have a right of access to such information, the position of a Member other than a Member of the Committee/relevant Executive Member(s), or other Member who can establish a Common Law "need to know", is analogous to that of a member of the public, and there is no legal right to attend any meeting or part of a meeting when such exempt information is discussed. This view is confirmed by the Court in the Queens Bench case of R. v Hackney LBC, ex parte Gamper [1985]. Thus in the case of access to documents, the answer must depend on whether a Member needs to attend a meeting where exempt information is discussed in order to perform his duties properly as a Member of the County Council or as a locally elected Member.

2.6.4 The importance of this qualification is made apparent when it is recognised that day-to-day County Council business is conducted through Committees of the Council or the Executive. If a Councillor is a Member of a Committee, then at Common Law, a right to attend and inspect documents relating to the business of that Committee is generally presumed. If a Councillor is not a Member of the specific Committee, such Member needs to show cause why sight of such documents and attendance at any "exempt" session of a meeting is necessary for him to perform his duties.

2.6.5 The position therefore at Common Law vis-à-vis the Committee Member is that there are no additional rights at Common Law over and above such rights as may apply at Statute Law for such Committee Member. However, for a non-Committee Member/non-Member of the Executive, such Member's position is not restricted by operation of any provisions in Section 100F of the 1972 Act or Regulation 17 of the 2000 Regulations, so far as they relate to a right to inspect exempt information. Thus, a non-Committee Member who establishes a "need to know" at Common Law would be entitled to access to Committee/Executive documents and to attend any meeting where such documents were discussed, even if the documents fell within the restrictions imposed at Section 100F(2) and (2A) of the 1972 Act or Regulation 17(3) and Regulation 17(3A) of the 2000 Regulations.

3. Protocol for Member/Officer relations

3.1 Contained within the Constitution at Part 4(3) is a Protocol for Member/Officer relations. Paragraph 4 of the Protocol contains a section "Members' access to information and to Council documents". The origin of the Protocol is not clear but seems to be based on a national Protocol which was produced in the mid-1990s. There is no longer a standard national Protocol. Research into Member/Officers Protocols in other authorities indicate that in many cases, the old national Protocol has been used as a starting point, but is currently adopted with amendments and additions to reflect changes in the law and local circumstances.

3.2 This Protocol needs to be looked at as part of the review of the Constitution, as it pre-dates Executive arrangements, and thus needs to be brought up-to-date. In particular, the Protocol needs to be amended to include the requirement that determination of questions relating to disclosure of exempt information should be made by the Monitoring Officer as "Proper Officer" as per the revised provisions of the 1972 Act, and the 2000 Regulations following the bringing into force of Executive arrangements. These amendments will be included in the revised Constitution.

4. Discussion

4.1 Whilst the position with regard to rights of access of Members to reports containing exempt information and meetings where such information is discussed is governed by law, application of the law in this subject is not a simple exercise, in particular the application of the Common Law "need to know" principle in the case of distribution of, or requests for, information from Non-Committee Members/Non-Members of the Executive over and above what rights such Members have by reason of statute law. The principal constraint on the disclosure of information to Members is created where the information in question is deemed to be exempt.

4.2 Both Statute Law and Statutory Guidance support the principle of access to information in particular circumstances, unless it is deemed exempt. Common Law then extends the direction of travel on a `need to know' basis. Where a Member is a Member of a Committee, whether from the Administration or the Opposition, such Member would normally be entitled to exempt information by virtue of his membership of the Committee. For example, whilst an Opposition Group Spokesperson for an Executive portfolio or a backbench Member in his capacity as locally elected Member might have access to reports, the Leader of the Opposition would not have, unless he can make out a statutory right or a Common Law "need to know". What this means in practice is that if exempt information is contained in a Committee, Executive Member, or Cabinet decision report, such information cannot be shared without it being adjusted or modified.

4.3 The traditional means of dealing with the issue in Local Government has been for queries to be referred to the Monitoring Officer as "Proper Officer" to decide. The suggested way forward is that as a matter of good governance, the County Council should develop from the legal position a set of business protocols relating to the distribution of confidential and exempt information, consistent with it being a modern business providing public services. Whilst it is not possible to establish a definitive guide for each and every eventuality, it is considered good business practice to establish a protocol for the distribution of papers/access to confidential and exempt information, subject to reference to the Monitoring Officer in case of specific queries. It is suggested that this protocol should be developed alongside the review of the Constitution, and reported to Council at its meeting in February. It is also suggested that as a matter of good governance and in the interest of the effective delivery of the County Council's business, the Chief Executive with the advice of the Monitoring Officer, put in place an "interim" procedure so as to advise the business until such protocol is agreed.

4.4 Investigation into the unauthorised disclosure of exempt information from the Audit Committee Report has also highlighted the fact that there appears to be no formal procedures in place for the governance and protection of confidential and exempt information. 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. As a matter of good governance, it is considered sensible for there to be in place a more formal protocol to cover the day-to-day handling and security of such information.

4.5 This might include a procedure whereby circulation of confidential and exempt information is 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 "need to know basis", in line with statutory and common law requirements.

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

4.7 It is also considered that a suitable training update for Members and Officers on the legal position in respect of exempt information, together with an update on the requirement of the Code of Conduct, so far as it relates to exempt information, could be helpful. This might be done by way of a "Part 2 type" information session and practical case study at the end of Committee and other meetings. It is suggested that this is undertaken by the Monitoring Officer.

5. Outcome of Report to Standards Committee - Investigation into Unauthorised Disclosure of Confidential and Exempt Information

5.1 On 30 October 2009, Members of Standards Committee met to consider a report regarding the investigation of the Monitoring Officer into the disclosure of exempt information as referred to at paragraph 1.3 of this report.

5.2 Members of Standards Committee noted the outcome of the investigation, and approved the suggestion of the Monitoring Officer to investigate how new procedures for improved governance and the protection of exempt information might be achieved.

5.3 Members of Standards Committee also requested that they be consulted on the detail of such procedures, and that once such procedures were in place, the Monitoring Officer undertake suitable briefings and training for Members and Officers on legal requirements in respect of exempt information, and requirements in respect of such under the Members' Code of Conduct and Officers' Code of Conduct.

6. Review of Constitution

6.1 As indicated previously in this report, the County Council at its meeting on 16 July 2009 approved a recommendation that the Chief Executive, in consultation with the Monitoring Officer, carry out a review of the Constitution, and that thereafter the Constitution should be reviewed by the Monitoring Officer on an annual basis.

6.2 This work is now well underway, and as an interim measure, a revised Constitution has been released reflecting recent changes arising from County Council meetings. Further updates are likely following the meeting of the County Council on 19 November 2009, and it is anticipated that the review will be completed and reported to the meeting of the County Council on 18 February 2010.

6.3 Briefing sessions for Members and relevant staff training on the revised Constitution will be offered in due course.

7. Member Attendance Records

7.1 A new Members Attendance Database has been operational since 1 April 2008 to electronically record and report the attendance of County Councillors at formal whole Council, Executive, Committee and Panel meetings including attendance at meetings, of the Hampshire Fire and Rescue Authority and Hampshire Police Authority. As part of the wider review, a health check in terms of business processes has been undertaken. This highlighted some minor improvements to the IT system together with a strengthening of business processes to standardise the recording of attendance and increasing the reliability of the information produced such as:

7.1.1 All Members will be asked to sign an Attendance Record at all formal Committee and Panel meetings indicating time of arrival and time of leaving. This practice is currently reserved to meetings of the whole Council only.

7.1.2 A quarterly attendance report will be produced for each Member of the County Council and e-mailed to them for checking and confirmation to provide Members with the opportunity to clarify any queries they may have in a timely manner.

7.2 All attendance information is part of a public record, open to inspection and subject to Freedom of Information requests. It is therefore proposed that confirmed attendance data be published on the County Council's website. However, it is important to emphasise that attendance records, whether by virtue of the Minutes of a Meeting or electronic data, are not intended to reflect the full range of duties and responsibilities County Councillors have and indeed it would be impossible to do so. It is therefore suggested that appropriate contextual information is published with the data to make this clear. Members can also take the opportunity to highlight their role and the wide variety of work they carry out by populating their individual Member page on Hantsweb.

8. Recommendations

8.1 To note the outcomes of the consideration by Standards Committee concerning the investigation by the Monitoring Officer into the unauthorised disclosure of confidential information, as detailed in paragraph 5 of the Report.

8.2 To approve the suggestion of the Monitoring Officer to investigate how new procedures for improved governance and protection of confidential and exempt information might be achieved, and the implementation of such procedures following consultation with Standards Committee.

8.3 To approve the publication of Member attendance data in respect of formal meetings of the whole Council, Executive, Committees and Panels.

CORPORATE OR LEGAL INFORMATION:

Links to the Corporate Strategy

Other Significant Links

IMPACT ASSESSMENTS:

1. Equalities Impact Assessment:

1.1. The review of the Constitution together with business practices will support a streamlined business framework thus reducing unnecessary duplication of effort and reproduction of reports. This action will have a positive impact on our carbon footprint/energy consumption.

2. Impact on Crime and Disorder:

N/A.

3. Climate Change:

a) How does what is being proposed impact on our carbon footprint / energy consumption?

N/A.

b) How does what is being proposed consider the need to adapt to climate change, and be resilient to its longer term impacts?

N/A.