FOI amendments pressed during Localism Bill

The Campaign for Freedom of Information has been working on amendments to the Localism Bill tabled by Lord Wills, the former Labour FOI minister. The amendments sought to:

1) Require local authority executives and their committees to meet in public, unless regulations specify otherwise. The Localism Bill amends the arrangements for local authority governance, allowing councils to return to the committee system should they choose to do so. For authorities which operate executive arrangements, the Bill allows for new regulations to be made governing the circumstances in which meetings and documents must be open to the public (Clause 11 of the Localism Bill gives effect to Schedule 2 which inserts a new Part 1A into the Local Government Act 2000, and the proposed section 9GA(4) of that new part provides for these regulations to be made). But if the regulations are not made before the new arrangements come into force, the Bill would leave it to executives themselves to decide which of their meetings will be open to the public and which will be held in private (Sections 9G(1) and (2) of the new part 1A). They would be free to hold all their meetings in private, should they choose to do so. The amendment sought to reverse this position, so that in the absence of regulations, all meetings of the executive or its committees would have to be in public.

2) Ensure that future contracts entered into by local authorities would include a ‘freedom of information’ provision. This would stipulate that all information about the performance of the contract which is held by the contractor would be deemed to be held 'on behalf of' the authority for the purpose of the Freedom of Information Act or Environmental Information Regulations. The ‘Community Right to Challenge’ in Chapter 3 of the Localism Bill envisages that a growing proportion of local authorities’ functions will be carried out for it by other bodies. The intention of the amendment is that the public’s rights to information should be the same, whether a particular task is carried out in-house or contracted out.

3) Bring companies that are 50% or more owned by local authorities within the scope of the FOI Act. At present the FOI Act applies to companies that are wholly owned by a single public authority. The Protection of Freedoms Bill would extend that definition to cover a company which is wholly owned by more than one public authority. However, a company which jointly owned by a public authority and some other body, perhaps a private company, is not subject to the FOI Act at all, even where the public authority is the dominant shareholder. The amendment would bring such companies within the Act’s scope.

4) Require local authorities to publish annual statistics on their compliance with the FOI Act.

5) Bring the Housing Ombudsman within the scope of the FOI Act. At present, complaints about social housing matters are dealt with by two different ombudsmen. Complaints about housing associations go to the Housing Ombudsman; complaints about local authority housing go to the Local Government Ombudsman. The Localism Bill proposes that in future a unified complaints system should apply, with both types of complaint going to the Housing Ombudsman.

This transfer of functions, may be accompanied by a strengthening of the Housing Ombudsman’s enforcement powers. The Bill allows the Secretary of State by Order to give the Housing Ombudsman the power to make determinations which have the force of a court order (New paragraph 7C, which would be added to Schedule 2 of the Housing Act 1996 by clause 158 of the Localism Bill). Surprisingly, the Housing Ombudsman is not subject to the Freedom of Information Act. The Localism Bill contains no provision to bring the Ombudsman under the Act, despite the fact that the Housing Ombudsman is to take over important responsibilities from the Local Government Ombudsman, who is subject to the FOI Act. The amendment would redress this anomaly.

The amendments were debated during the second day of the Bill’s committee stage on Thursday 23 June 2011. Responding to the debate, the minister Baroness Hanham gave a reassurance that the Government would make it clear there is a presumption of openess regarding meetings of local authority executives. But she did not support any of the other amendments.

I cannot say anything more than that we are very much in favour of open access to meetings of local authorities, but we recognise that there are occasions when confidential information has to be discussed – for example, information on contracts and members of staff. Meetings have to be closed sometimes, but we will make it clear that there has to be a presumption in favour of openness… 

We do not believe that it is necessary to extend the Freedom of Information Act to those bodies at present with information about contracts with public authorities, which can be requested from them. A local authority can be quizzed about any contract that it has and we are proactively publishing contractual information online.

Amendment 133C would introduce a statutory requirement for the publication of an annual report by every local authority, including the smallest parish councils receiving very low volumes of freedom of information requests. We do not think that this is a burden that should be borne...

Finally, on extending the Freedom of Information Act to cover the Housing Ombudsman, it is worth noting that we are planning to extend the Act to a considerable number of new bodies through legislation and we intend to keep those under review. While I do not say “in”, I do not say “out” at the present time.

In reply, Lord Wills pressed the minister to consider the amendments again in more detail.

I am grateful to the Minister for the spirit in which she engaged with these amendments. However, her response was not quite as welcoming instinctively as I would have hoped, so I ask her to scrutinise the amendments in more detail and perhaps to consult the noble Lord, Lord McNally. I do not say that because I discount any possible burdens put on local authorities or contractors or businesses. As someone who ran a small business in the past, I am deeply conscious of the need to avoid putting burdens on small businesses. These amendments were framed not to place a disproportionate burden on anyone. Perhaps on closer scrutiny that will become apparent.

I am willing to accept any suggestions for amendments and I am sure that the Government would be able to improve the drafting. The key point that I ask the Minister to take away is that, if the Government do not engage with the issues behind these amendments…that will mean, potentially, over time, a significant diminution of transparency in the operation of local authorities and those whom they contract to provide services for them. That is very serious for those who believe in freedom of information. It is in breach of a fundamental tenet of the coalition agreement, which is why I hope that this Government will take it seriously.

Read the full debate on the amendments here (begins Col 1433).

See also:
Localism Bill Explanatory Notes [HL Bill 71] ) (pdf)
Second Marshalled List of Amendments as at 21 June. Lord Wills' amendments were 52A, 133A, 133B, 133C and 181A.

Compromise agreements prohibiting ex-employees from making FOI requests

Paul Cardin has been highlighting the fact that two councils (Cheshire West & Chester Council and Brent Council) have, as part of compromise agreements reached with former employees, imposed restrictions which prohibit them from making requests under the Freedom of Information and Data Protection acts. The Information Commissioner's Office has advised Paul that, in such situations, an ex-employee could still exercise their right to make requests and the authority would likely be in breach of the legislation if it refused to deal with them. However, if they did so, there may be legal consequences such as action for breach of contract. The issue has been covered by the Chester Chronicle, Roy Greenslade of the Guardian and by David Higgerson.

Paul has received legal advice and is now pursuing a claim against Cheshire West and Chester Council.
Further details about Paul's case are on his website: www.easyvirtualassistance.co.uk/page4.html

Pickles: councils should allow meetings to be recorded

Communities and Local Government News
23 February 2011

Councils should open up their public meetings to local news 'bloggers' and routinely allow online filming of public discussions as part of increasing their transparency, Local Government Secretary Eric Pickles said today.

To ensure all parts of the modern-day media are able to scrutinise Local Government, Mr Pickles believes councils should also open up public meetings to the 'citizen journalist' as well as the mainstream media, especially as important budget decisions are being made.

Local Government Minister Bob Neill has written to all councils urging greater openness and calling on them to adopt a modern day approach so that credible community or 'hyper-local' bloggers and online broadcasters get the same routine access to council meetings as the traditional accredited media have.

The letter sent today reminds councils that local authority meetings are already open to the general public, which raises concerns about why in some cases bloggers and press have been barred.

For example Tameside Council has accredited professional journalists to report from meetings using Twitter. The decision means local bloggers, the public and even councillors are not permitted to tweet because they are not considered members of the press.

Eric Pickles said:

"Fifty years ago, Margaret Thatcher changed the law to make councils open their meetings to the press and public. This principle of openness needs to be updated for the 21st Century. More and more local news comes from bloggers or citizen journalists telling us what is happening at their local council.

"Many councils are internet-savvy and stream meetings online, but some don't seem to have caught up with the times and are refusing to let bloggers or hyper-local news sites in. With local authorities in the process of setting next year's budget this is more important than ever.

"Opening the door to new media costs nothing and will help improve public scrutiny. The greater powers and freedoms that we are giving local councils must be accompanied by stronger local accountability.

"We are in the digital age and this analogue interpretation of the press access rules is holding back a new wave of local scrutiny, accountability and armchair auditors."

The letter also reassured councils that giving greater access will not contradict data protection law requirements following concerns over personal information. In the majority of cases the citizen blogging about how they see the democratic process working is unlikely to breach the data protection principles.

Chris Taggart, of www.OpenlyLocal.com (external link), which has long championed the need to open council business up to public scrutiny, added:

"In a world where hi-definition video cameras are under £100 and hyperlocal bloggers are doing some of the best council reporting in the country, it is crazy that councils are prohibiting members of the public from videoing, tweeting and live-blogging their meetings.

"Councils need to genuinely engage their communities and giving wider access to their meetings through these technologies is one way they can do this."

Full press release here.

Local newspaper editors say public bodies becoming more secretive

Local newspaper editors believe public bodies are becoming more secretive, according to a survey conducted by the Newspaper Society for Local Newspaper Week, which ran from 10-16 May 2010.

Nearly 80 per cent of local newspaper editors believe public bodies such as the local council, police or health authority are becoming more secretive, according to an NS survey.

Just 10 per cent of editors from weekly and daily titles said getting information from public bodies had become easier in recent years while 13 per cent said it was neither harder nor easier.

The online survey of local newspaper editors was conducted by the NS for Local Newspaper Week which this year is themed Your Voice.

It found that more than a third (35 per cent) of editors had experienced having a reporter prevented from attending a public meeting or prevented from reporting details from it. 

Eighty-two per cent of those who had encountered these obstructions had challenged them and more than two thirds (67 per cent) of those challenges were successful.
...
In the past year, the average local newspaper submitted 16 FoI requests and in 81 per cent of cases, the information requested was successfully obtained.

A recent paper by James Morrison, senior lecturer in journalism at Kingston University, also concluded that council decision making has become more secretive.

While Whitehall has been trumpeting its moves to improve monitoring of waste managers and care home owners, the machinery of local government in the here and now - short, the way political decisions affecting tomorrow's services are being taken - has become ever more opaque.

Morrison highlights the Local Government Act 2000 which led to the introduction of Westminster-style cabinets and executives and the appointment of political assistants modeled on ministerial special advisers:

The combined effect of these twin developments has been to maximise the ability of council cabinets/executives to take policy decisions in secret, while minimising that of the press, public, or indeed councillors shorn of 'frontbench' roles to scrutinise or challenge their actions. Meetings of council committees and the full council – once energetic arenas for public debate and knife-edge votes on controversial issues (not to mention sources of lively news copy) – have been reduced to little more than a rubber-stamp…With council meetings downgraded to the status of talking-shops, it’s little wonder that today’s local newspaper editors – faced with ever-tighter budgets and 24-hour deadlines for their web operations – are voting with their feet and ceasing to cover them.”

The paper quotes one response from a Yorkshire based paper:

We have experience of cabinets meeting both in public and privately. Our experience has been that the LGA has made councils more secretive and less open. The idea of cabinet responsibility has made it harder to question decisions and we have to rely on FOI more than I would like. For instance, ten years ago only the largest councils had press offices to field questions. Smaller district councils gave direct access to senior officers. This is no longer the case.