Tribunal rejects FOI request over code of conduct complaints process

It is important that a council’s code of conduct complaints process remains confidential, the First-tier Tribunal has said in rejecting an appeal over the refusal of a freedom of information request.

In Michael Thompson v IC & Cheshire East Council (Freedom of Information Act 2000) [2016] UKFTT 2016_0044 (GRC) the appellant, a town councillor at the time, had complained to the local authority about another councillor.

Cheshire East considered the complaint under a ‘Members Code of Conduct Complaint Process’, and decided to take no further action.

The appellant subsequently requested from the council in March 2015 “a copy of [named councillor’s] response to my formal complaint made in August 2014, as despite being found in breach of the Code of Conduct, I am dissatisfied with the outcome”.

Cheshire East responded shortly after and noted that the councillor had not been found to have breached the code of conduct. It said it would need to contact ‘the relevant people’ for their ‘consent’.

The appellant then broadened his request, saying it was “necessary to have copies of all the evidence supplied in support of [named councillor’s] defence against my complaint, as such evidence may have been influential in causing a miscarriage of justice”.

In August 2015 Cheshire East refused to disclose the information relying on s. 41 (information provided in confidence) of FOIA. It pointed out that the complaints process noted that written replies by a respondent were provided in confidence and there was no expectation of release of the information following an FOI request. It also said the councillor in question had not consented to its release.

With the appellant progressing the matter and complaining to the Information Commissioner, the council sought additionally to rely on s. 21 (information accessible by other means) and s. 40(2) (personal information) of FOIA.

The Information Commissioner concluded that Cheshire East had correctly relied on both s. 40(2) and s. 21.

In relation to s. 40(2) the IC decided that disclosure of the information would be unfair, and therefore in breach of the first data protection principle.

Factors he considered included: a general expectation of privacy for conduct investigations; there was a legitimate expectation of privacy; disclosure would cause unwarranted damage or distress to the councillor; and it was not within the remit of the IC to consider the merits of the complaint (the appellant feeling that his complaint had not been handled properly).

In relation to s. 21 the Information Commissioner accepted that it applied in relation to the Handforth Town Council minutes and budget for 2014/15 since the minutes were on the town council’s website and both documents had been provided to the appellant.

The appellant appealed to the First-tier Tribunal. His grounds included that the councillor was the only person who feared disclosure, and that he would like to see what the councillor wrote because he believed that if he claimed something had occurred which had not, the council’s decision would be flawed.

In relation to s. 21, the Tribunal accepted that the minutes and budget were provided to the appellant.

The FTT also said s. 40(2) was appropriately relied on so as to withhold the requested information. Its reasons included that:

• The requested information was clearly personal data.
• Even though the material related to the individual’s work rather than personal activities, it related to a complaint made against the councillor’s behaviour and the council considered whether the behaviour contravened its code of conduct. As such, the information was clearly personal in nature, “in the same way that an individual’s annual appraisal report can be considered to be personal data”.
• Disclosure was unwarranted. “Notwithstanding that the councillor held a public office and the withheld information related to the councillor’s public function rather than private life, we accept that information relating to complaints against individuals carries a very strong general expectation of privacy. This is due to the likelihood that disclosure could cause the individual distress and potential damage to future prospects and general reputation.”
• The FTT accepted that the councillor would have had a legitimate expectation of privacy based on the Tribunal’s finding that material provided in relation to an investigation into conduct is “inherently highly personal in nature and the councillor’s rights and interests in the privacy of his data need to be respected”.
• It was not relevant that neither the requester nor the councillor were no longer in office, “since they might seek to be in future”.
• The councillor had a legitimate interest and right to have his personal data withheld from the public because the subject matters attracted a right to privacy.
• The collective weight of interest in disclosure was “vastly outweighed by the councillor’s rights and freedoms or legitimate interest in…not disclosing to the world at large material related to a complaint about his conduct where the council did not find the complaint to be merited”.

In relation to the s. 41 exemption, the council did not make extensive submissions. The FTT did not consider this further, as it had found that the information was rightly withheld on the basis of other exemptions.

The FTT did, however, conclude: “The Code of Conduct Complaints process provides that respondents are entitled to rebut complaints made against them. This process is undertaken in confidence.

“If for any reason the full details of member complaints and the consequential rebuttals are released to the world in response to requests for information, all confidence in the process would be lost. The process and regime would be undermined by a resultant lack of candour in complained about members’ responses to complaints and, potentially, in the detail and context of complaints made against them. Therefore it is important that this process remains confidential.”