Councillors and Freedom of Information Regulations
Introduction
In this guidance freedom of information is taken to mean the rights to access information under the Freedom of Information (Scotland) Act 2002 (FOI(S)A), the Data Protection Act 1998 (DPA) and the Environmental Information (Scotland) Regulations 2004 (EISRs).
There are two main issues which need to be considered when discussing the relationship between freedom of information and councillors.
- The first issue is whether councillors are covered by the legislation.
- The second is to what extent local authorities hold information on behalf of councillors.
Are councillors covered by the legislation?
Schedule 1 of FOI(S)A sets out the bodies which are public authorities under FOI(S)A. Part 3 of Schedule 1 covers “local government”. The following bodies are specifically mentioned in Part 3: assessors, councils, joint boards, licensing boards and the Strathclyde Passenger Transport Authority.
The problem comes, however, in deciding whether a councillor is acting as part of one of these bodies (referred to as “councils” in the rest of the document). There does not appear to be any set rules on when a councillor is and is not acting on behalf of a council.
However, it is helpful to look at guidance which has been issued to councillors in respect of other legislation. For example, guidance issued by the UK Information Commissioner (UKIC), who is responsible for regulating the Data Protection Act 1998, recognises that a councillor can act
- as a member of a council (e.g. as a member of a housing committee who has access to tenancy files);
- on their own behalf (e.g. dealing with complaints made by local residents) and
- on behalf of a political party (e.g. as an office holder or official candidate).
The guidance appears to suggest that that only when the councillor is acting as a member of the council are they part of the council.[1]
The Scottish Information Commissioner agrees with this line and is of the opinion that information held by a councillor in relation to his/her party political or constituency activities will not be accessible under FOI(S)A or the EISRs. Any other information held by a councillor is likely to be covered by FOI(S)A and the EISRs. This includes recorded information about formal council meetings (including minutes, agendas and reports) and informal meetings which the councillor has with council staff or with external bodies on council business. It will also include information which the councillor holds as, e.g., the leader of the council.
It may also include information which a councillor holds as a result of his/her membership of an external body, although this is likely to depend on the terms of his/her appointment to the body.
It is of course possible that information will not have to be disclosed because it falls into one of the exemptions contained in the Freedom of Information (Scotland) Act or the Environmental Information (Scotland) Regulations.[2]
Requests for information relating to a councillor’s work as member of a council could be made either to the council or to the councillor. The 20 working day period for responding to requests begins when the council or the councillor receives this information.
Please see Guidance on dealing with requests for information under Freedom of Information, Data Protection and Environmental regulations.
What about information held by a council which belongs to a councillor?
The Freedom of Information (Scotland) Act allows an information request to be made for any information which is held by a council. However, there is a definition of “held” in FOI(S)A, which means that if a council holds information on behalf of another person, then that information is not considered to be held by the council and does not have to be released in line with an information request.
The EISRs are very different. If information is in the possession of a council and has been produced or received by that council or is held on behalf of another person or local authority then the information is considered to be “held” and should be released under the EISRs. Unlike the Freedom of Information (Scotland) Act, the EISRs do not exempt information which a council holds on behalf of another person.
Many councils are likely to hold information on behalf of a councillor. For example, a council may allow a councillor to use its IT system for writing and storing correspondence with and on behalf of constituents. Some councils provide councillors with administrative support, including for political meetings. What happens if requests are made for information held by the council in these circumstances?
As mentioned above, councillors do not need to respond to requests for information made to them where the information request relates to their party political or constituency activities. The SIC is satisfied that where a request is made to a council for this type of information under FOI(S)A, then the council only holds the information because it is holding it on behalf of the councillor. As a result, neither the councillor nor the council needs to disclose the information under FOI(S)A.
However, the EISRs are different from FOI(S)A. They do not exempt information which is held on behalf of another person. Instead, information which is in a council’s possession and has been produced or received by that council is considered to be held by the council and should be released under the EISRs. This means that environmental information which a council holds on behalf of a councillor would have to be disclosed. However, there may be other exceptions under the EISRs which allow the information to be withheld, e.g. because it is personal data (reg.11).[3]
Status of guidance
These notes are based on the guidance provided by the Scottish Information Commissioner at the request of COSLA. It contains the Commissioner’s current view. This view may change over time as cases are referred to the Commissioner for decision and most requests will have to be considered on a case by case basis. It is not legal advice and should not be considered as such.
The guidance may be seen at:-
[1] The guidance relates to the notifications requirements of councillors. SIC has discussed the relationship of freedom of information and councillors has with the UKIC, but his office do not yet have a policy on the relationship.
[2]Although the publication of committee agendas, reports etc is covered by the Local Government (Access to Information) Act 1985 (the 1985 Act), any refusal to disclose information must still be considered in line with the exemptions contained in the Act or the EISRs. Both the Act and the EISRs exempt information if other legislation prohibits the disclosure of that information (s26(a) of the Act and reg.10(5)(d) of the EISRs). The 1985 Act only prohibits the disclosure of information in very limited circumstances, ie (1) where the information has been given to the council by a government department and that department has expressly forbidden the disclosure of the information and (2) information the disclosure of which is prohibited by statute or by the order of a court. If the information falls into either of these groups, it does not have to be disclosed in response to a request under the Act or the EISRs, because of the specific exemptions in the Act and the EISRs for information whose disclosure is prohibited by other legislation. However, there are other circumstances (see Sch 7A of the 1985 Act) in which councils are permitted to withhold information from the public. The fact that councils are given a discretion here means that the disclosure of the information is not prohibited by other legislation and the exemption in s26(a) of the Act and reg.10(5)(d) of the EISRs cannot be relied on. However, even if these exemptions cannot be used, it is possible that councils will be able to rely on one of the other exemptions in the Act or in the EISRs.
[3]This issue was raised with the Scottish Executive Environment Group on 16 November 2004. They have been asked to consider aligning the EISRs with the Act.