Council not required to disclose advice of independent person: Tribunal

Stratford-on-Avon District Council need not disclose advice given by an independent person in a case over a councillor’s conduct, the First-Tier Tribunal (FTT) has said.

The case was brought by local resident Cyril Bennis. The tribunal concluded that the Information Commissioner’s decision notice was wrong in its assessment of the public interest test as it related to both of the exemptions relied on by the council under s.36 of the Freedom of Information Act.

However, the FTT found the council was correct to refuse part of the requested information under s.40 (2) FOIA and need take no further action.

In its ruling, the tribunal said Mr Bennis made a complaint of misconduct against a councillor over a planning matter, which was not upheld.

He then asked the council to disclose the advice it had received from one of the ‘independent persons’ appointed under s.28 (7) of the Localism Act 2011.

Stratford refused to disclose this on grounds of personal data, inhibition of free and frank advice and prejudice to the effective conduct of public affairs.

The Information Commissioner upheld this approach and Mr Bennis appealed on grounds related to principles of transparency, accountability and public confidence in the conduct of local government.

In its ruling, the tribunal said the council had said the IPs expected their advice would be treated as confidential but noted that if the matter had gone to a hearing it would have been made public anyway.

“The decision notice thus attributed considerable weight to the argument that the IPs would be inhibited in giving robust advice if they knew that their views were to be made public, and that this would in turn prejudice the effective conduct of public affairs.

“However, in our view, the decision notice failed when assessing the public interest balance to take into account the fact that the IP’s views would in any event have become public if a hearing had been directed.”

The tribunal though agreed with the council that details of unsubstantiated complaints against councillors ought not generally to be disclosed to the world at large under the provisions of FOIA.

“We consider that the proper approach to such information is to consider the rights of the councillor concerned as a data subject. We are satisfied that the council could not disclose the councillor’s personal data in this case (consisting of their name and opinions expressed about them) without breaching the data protection principles and that s.40(2) FOIA is therefore engaged,” the FTT said.

It added: “…Whilst we find that the Decision Notice was erroneous, we do not direct the disclosure of the withheld information because we conclude that it is exempt from the duty of disclosure under s.40(2) FOIA.”

Mark Smulian