New regulations have made changes to the statutory access to information requirements which apply to the executive arrangements of local authorities in England.

The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 come into force on 10 September 2012.  They apply to county councils in England, district councils and London borough councils if those councils are operating executive arrangements in accordance with Part 1A of the Local Government Act 2000.  These new regulations revoke the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000, the Local Authorities (Executive Arrangements) (Access to Information) (England) Amendment Regulations 2002, and the Local Authorities (Executive Arrangements) (Access to Information) (Amendment) (England) Regulations 2006.

The arrangements introduced by the new regulations include the following provisions:

  • There is a requirement that all meetings of “a decision-making body” are to be held in public unless an exception applies.  A “decision-making body” under the regulations includes: a local authority’s executive and its committees and sub-committees; joint committees where all the members are members of a local authority executive; sub-committees of such joint committees, and area committees of local authority executives.  If a meeting is open to the public, the regulations require that any person attending the meeting for the purpose of reporting proceedings should be afforded reasonable facilities for taking their report.
  • There is a requirement that the public should be excluded from a meeting of a decision-making body if confidential information is likely to be disclosed or if a resolution has been passed to exclude the public because exempt information is likely to be disclosed or if a lawful power is used to exclude members of the public in order to maintain orderly conduct or prevent misbehaviour.  “Confidential information” is defined as information provided to the local authority by a Government department on terms which forbid the disclosure of the information to the public or information the disclosure of which is prohibited by or under any enactment or a court order.  “Exempt information” is defined by reference to section 100I of the Local Government Act 1972.
  • There is a requirement for the decision-making body of a local authority to provide at least 28 clear days notice of a meeting to be held in private.  The notice must include the reasons for the meeting to be held in private.  It must be made available at the local authority’s offices and published on the  local authority’s website if the local authority has one.  During the notice period, members of the public may make representations about why the meeting should be held in public.  At least five clear days before the private meeting, the decision-making body must make another notice available at the local authority’s offices and publish it on the  local authority’s website if the local authority has one.  That further notice must include the reasons for the meeting to be held in private, details of any representations received about why the meeting should be held in public, and the response of the decision-making body to the representations.  If the need for a meeting is so urgent that it is impracticable for a decision-making body to comply with these requirements, a meeting may be held in private if this has been agreed by the chair of the relevant overview and scrutiny committee or, if there is no such person or the chair is unable to act, the chair of the local authority or, if there is no such person, the vice-chair of the local authority.  In those circumstances, the decision-making body must, as soon as reasonably practicable after obtaining the required agreement, make available at the local authority’s offices a notice, explaining why the meeting is urgent and cannot reasonably be deferred.  The decision-making body must also publish that notice on the local authority’s website if the local authority has one.
  • There is an obligation for decision-making bodies to give at least five clear days notice of the time and place of a public meeting unless the meeting is convened at shorter notice.  If a meeting is convened at shorter notice, the notice of the time and place must be given at the time that the meeting is convened.  The regulations do not specify how meetings are to be convened at shorter notice, other than making provision for urgent key decisions to be taken without complying with the usual publicity requirements.  The notice must be displayed at the local authority’s offices and published on the local authority’s website if the local authority has one.  The agendas and reports for such meetings must also be made available to the public, except where they relate only to matters during which, in the proper officer’s opinion, the meeting is likely to be a private meeting.  Copies must also be available for the use of members of the public at the meeting and must also be made available to members of the public and to newspapers following a request and payment of postage, copying or other necessary charges.
  • There is a requirement for a decision-maker who intends to make a key decision on behalf of a local authority to publish a document publicising this.  As well as explaining that a key decision is to be made, the document must include the following details: the matter in respect of which the decision is to be made; where the decision-maker is an individual their name and title and where the decision-maker is a body its name and members; the date on or period within which the decision will be made; the documents to be considered before the decision is made; the address from which those documents are available; confirmation that other documents may be submitted to the decision-maker, and the procedure for requesting details of such documents as they become available.  If the matter is one in respect of which provisions apply which require the exclusion of the public from meetings at which the matter is to be discussed or provide exemption from the disclosure of documents relating to the decision, the document publicising the intended key decision should contain particulars of the matter but should not contain confidential or exempt information or details of the advice of a political adviser or assistant.
  • The document outlined above about a key decision must be made available for public inspection at the local authority’s offices and on the local authority’s website if it has one.  This must be done at least 28 days before a key decision is made.  If it is impracticable to comply with the publication requirements before a key decision is made because of reasons of urgency, the decision may be made if: the proper officer has given written notice of the matter to the chair of the relevant overview and scrutiny committee, or, if there is no such person,  to each member of the of the relevant overview and scrutiny committee; the proper officer has made that notice available for public inspection at the local authority’s offices and published it on the local authority’s website if it has one, and five clear days have elapsed after the day on which the proper officer made the notice available.  In those circumstances, as soon as reasonably practicable after complying with those requirements, the proper officer must make available at the local authority’s offices a notice explaining why compliance with the publication requirements before making a key decision is impracticable.  The proper officer must also publish the notice on the local authority’s website if it has one.  In cases of special urgency, where even compliance with this amount of prior publication is impracticable, a key decision may be made if the decision-maker has the agreement of the chair of the relevant overview and scrutiny committee or, if there is no such person or the chair is unable to act, the chair of the local authority or, if there is no such person, the vice-chair of the local authority.  As soon as reasonably practicable after obtaining such agreement, the decision-make must make available at the local authority’s offices a notice setting out the reasons for urgency.  The decision-maker must also publish the decision on the local authority’s website if the local authority has one.
  • There is an obligation for the executive leader or elected mayor, as applicable, to submit to the relevant local authority, at such intervals as the local authority determines, a report containing details of each executive decision taken since the submission of the last report where the making of the decision was agreed as urgent.  That report must include particulars of each decision made and a summary of the matters in respect of which each decision was made.  The executive leader or elected mayor must submit at least one such report annually.  
  • There is an obligation for any executive decision made by decision-making bodies at meetings to be recorded in a written statement which includes details of: the decision and the date it was made; the reasons for it; any alternative options considered and rejected; any conflicts of interests declared and any dispensations granted in respect of any declared conflict.  The proper officer is responsible for ensuring that the written statement is produced but if the proper officer was not present at the meeting the person presiding at the meeting has that responsibility.  These statements and the reports considered must be made available for inspection at the local authority’s offices and published on the local authority’s website if it has one.  They must also be supplied to a newspaper following a request and payment of postage, copying or other necessary charges.
  • There are also obligations for the recording of executive decisions made by individual members or officers.  As soon as reasonably practicable after an individual member has made an executive decision, that member must produce or instruct the proper officer to produce a written statement.  That must include details of: the decision and the date it was made; the reasons for it; any alternative options considered and rejected; any conflicts of interests declared by any executive member consulted by the individual member and any dispensations granted in respect of any declared conflict.  As soon as reasonably practicable after an officer has made an executive decision, that officer must produce a written statement.  That must include details of: the decision and the date it was made; the reasons for it; any alternative options considered and rejected; any conflicts of interests declared by any executive member consulted by the officer and any dispensations granted in respect of any declared conflict.  These statements and the reports considered must be made available for inspection at the local authority’s offices and published on the local authority’s website if it has one.  They must also be supplied to a newspaper following a request and payment of postage, copying or other necessary charges.
  • There is a requirement that if an executive possesses a document containing material relating to business to be discussed at a public meeting, that document must be available for inspection by members of the local authority at least five clear days before the meeting.  If a meeting is called at shorter notice or an item is added to the agenda at shorter notice, the document must be made available when the meeting is called or the item is added.  If an executive possesses a document containing material relating to business transacted at a public meeting or executive decisions made by an individual member or officer, that document must be available for inspection by members of the local authority within 24 hours of the meeting or decision.  However, disclosure of  exempt information or details of the advice of a political adviser or assistant is not required. 
  • There are rights of access to information for members of overview and scrutiny committees.  They are entitled to a copy of any document which is in the possession of or under the control of their local authority’s executive and which contains material relating to business transacted at a meeting of a decision-making body of the local authority, or executive decisions made by individual members or officers.  If a member of an overview and scrutiny committee requests such a document, the executive must provide it no later than 10 clear days after the executive receives the request.  Members of overview and scrutiny committees are not entitled to documents or parts of documents containing confidential or exempt information unless this is relevant to an action or decision that the relevant member is reviewing or scrutinising or to a review contained in any work programme of the member’s overview and scrutiny committee or a sub-committee of it.  If an executive decides not to release a document or part of a document to a member of an overview and scrutiny committee as requested, it must provide the overview and scrutiny committee with a written statement which explains the reasons.
  • If an executive decision is not treated as a key decision and a relevant overview and scrutiny committee believes that it should have been, that committee may require the executive to submit a report to the local authority.  That report must include details of: the decision; the reasons for the decision; the decision maker, and if the executive of the local authority are of the opinion that the decision was not a key decision, the reasons for that opinion.
  • Offences are introduced, which are committed if, without reasonable excuse, a person who has custody of a document which is required to be available for inspection by members of the public intentionally obstructs any person exercising a right to inspect or copy the document of part of it or refuses to supply a copy.

Eric Pickles, the Communities and Local Government Secretary, has said that every decision a council takes has a major impact on the lives of local people, so it is crucial that whenever it takes a significant decision about local budgets that affect local communities, whether it is in a full council meeting or in an unheard of sub-committee, it has got to be taken in the full glare of all the press and any of the public.

The principle of access to information relating to local authority decisions is well established and some of the provisions of the new regulations reinforce obligations with which local authorities are familiar.  Local authorities generally aim to be transparent in their activities and restrict access to information only where this is necessary to comply with obligations.  However, some of the regulations do potentially increase the obligations on local authorities and they need to ensure that they are meeting their obligations.  For example, if local authorities have restricted the use of written statements of the reasons for decisions made by officers to those decisions which are key decisions, they will need to ensure that they make any necessary changes to their systems to comply with the requirements relating to any executive decisions taken by individuals.

Local authorities may also find it appropriate to consider whether they should review the approach they take to the use of social media in the context of their meetings and decisions.  In the past, the attitude taken towards activities such as tweeting and blogging has varied between local authorities.  Local authorities are already required, by section 100A(6) of the Local Government Act 1972 to afford reasonable facilities to “duly accredited representatives of newspapers” to enable them to report on meetings that are open to the public.  The new regulations go further in respect of executive meetings that are open to the public, requiring that “any person attending the meeting for the purpose of reporting the proceedings is, so far as is practicable, to be afforded reasonable facilities for taking their report”.  The Department for Communities and Local Government indicated in the notes to editors contained in its press notice about the regulations that it expects this to make it easier for new social media reporting of council executive meetings thereby opening proceedings up to internet bloggers, tweeting and hyperlocal news forums.  Eric Pickles commented that every kind of modern journalist can go through the doors of town hall transparency, be it from the daily reporter, the hyper-local news website or the armchair activist and concerned citizen blogger.  There is therefore a clear indication that the Government does not expect local authorities to prevent or restrict the use of social media to report their public meetings.