Council Constitution 05 Part 4 - Access to Information Procedure Rules

Scope

These rules apply to all meetings of the Council, its Committees and Sub-Committees (including but not limited to the Overview and Scrutiny Committees, area committees (if any), the Governance Committee and regulatory committees and panels and public meetings of the Executive (together called “meetings”).

Principles

These rules will be interpreted, where possible, in accordance with the following guiding principles / presumptions:

1. Openness: the right of the public to gain access to meetings and documents;
2. Transparency: the provision of information so that the public know who is responsible for making a particular decision, when and where, and have an explanation or justification for a decision;
3. Accountability: the public can measure the actions taken against policies and plans on which those responsible were elected to office.

Rights To Attend Meetings

Members of the public may attend all meetings subject only to the exceptions in these rules.

Notices Of Meeting

The Council will give at least five clear days’ notice of any meeting by posting details of the meeting at the designated office and publishing on its website.

Rights To Papers

The Council will make copies of the agenda and reports open to the public available for inspection at the designated office and online at least five clear days before the meeting. If an item is added to the agenda later, the revised agenda (where reports are prepared after the agenda has been sent out, the designated officer shall make each such report available to the public as soon as the report is completed and sent to Councillors) will be open to inspection for the time the item was added to the agenda.

Supply Of Copies

The Council will supply copies of:

1. any agenda and reports which are open to public inspection;
2. any further statements or particulars necessary to indicate the nature of the items in the agenda; and
3. if the Director of Legal and Governance thinks fit, copies of any other documents supplied to Councillors in connection with an item to any person on payment of a charge for postage and any other costs.

Access To Papers After The Meeting

The Council will make available copies of the following for six years after a meeting:

1. the minutes of the meeting or records of decisions taken, together with reasons, for all meetings of the Executive, excluding any part of the minutes of proceedings when the meeting was not open to the public or which disclose exempt or confidential information;
2. a summary of any proceedings not open to the public where the minutes open to inspection would not provide a reasonably fair and coherent record;
3. the agenda for the meeting; and
4. reports relating to items when the meeting was open to the public.

Background Papers

1. List of background papers
   
   The officer with responsibility for the report (usually the report author) will set out in every report a list of those documents (called background papers) relating to the subject matter of the report which in his/her opinion:
   1. disclose any facts or matters on which the report or an important part of the report is based; and
   2. which have been relied on to a material extent in preparing the report but does not include published works or those which disclose exempt or confidential information (as defined in Rule 10).
2. Public inspection of background papers
   
   The Council will make available for public inspection for four years after the date of the meeting one copy of each of the documents on the list of background papers.

Summary Of Public’s Rights

A written summary of the public’s rights to attend meetings and to inspect and copy documents will be kept at and available to the public at the Civic Centre – from the Director of Legal and Governance.

Exclusion Of Access By The Public To Meetings

1. Confidential information – requirement to exclude public
   
   The public must be excluded from meetings whenever it is likely in view of the nature of the business to be transacted or the nature of the proceedings that confidential information would be disclosed.
2. Exempt information – discretion to exclude public
   
   The public may be excluded from meetings whenever it is likely in view of the nature of the business to be transacted or the nature of the proceedings that exempt information would be disclosed. Where the meeting will determine any person’s civil rights or obligations, or adversely affect their possessions, Article 6 of the Human Rights Act 1998 establishes a presumption that the meeting will be held in public unless a private hearing is necessary for one of the reasons specified in Article 6.
3. Meaning of confidential information
   
   Confidential information means information given to the Council by a Government Department on terms which forbid its public disclosure or information which cannot be publicly disclosed by Court Order.
4. Meaning of exempt information
   
   Exempt information means information falling within the following seven categories (subject to any condition):
   
   

   Number	Category	Condition
   1	Information relating to any individual.	This means any individual person and relates back to the Data Protection Act 1998 (DPA).
   2	Information which is likely to reveal the identity of an individual.	This again relates back to DPA.
   3	Information relating to the financial or business affairs of any particular person (including the Authority holding that information).	Includes information relating to the Authority’s own financial or business affairs. It does not include information which is required to be registered under the Companies Act 1985, the Friendly Society Acts 1974 and 1992, the Industrial and Provident Societies Acts 1965-1978, the Building Societies Act 1986 or the Charities Act 1993 as such information will be in the public domain in any event. The “financial affairs or business affairs” include past, present and contemplated activities.
   4	Information relating to any consultations or negotiations, or contemplated consultations or negotiations, in connection with any labour relations matter arising between the Authority or a Minister of the Crown and employees of, or office holders under, the Authority.	“Employee” means a person employed under a contract of service with the Council and would not therefore include a consultant or a temporary member of staff employed through an agency or a company. Information about such a person, however, may well be covered under the exemptions in paragraphs 1, 2 and 3 but it will depend on the individual matter. “Labour relations matter” means matters which may be the subject of a trade dispute within the meaning of Section 218(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 or any dispute about such a trade dispute. This is therefore fairly narrow and does not appear to include normal staff negotiations which are not part of a dispute.
   5	Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.
   6	Information which reveals that the Authority proposes – (a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person, or (b) to make an order or direction under any enactment.
   7	Information relating to any action taken or to be taken in connection with the prevention, investigation or prosecution of crime
   7(A)	Information which is subject to any obligation of confidentiality
   7(B)	Information which relates in any way to matters concerning national security
   7(C)	The deliberations of a Standards Committee or of a sub committee of the Standards Committee established under the provisions of Part 3 of the Local Government Act 2000 in reaching any finding on a matter referred under the provisions of Section 60(2) or (3), 64(2), 70(4) or (5) or 71(2) of that Act

   
   Information is not exempt if it relates to proposed development for which the Local Planning Authority may grant itself planning permission pursuant to Regulation 3 of the Town and Country Planning (General) Regulations 1992.
5. Public Interest Test
   
   Paragraphs 1-7 of the exceptions (Rule 10.4) are subject to the public interest test. In determining whether this information should remain exempt, the report writer and the decision-maker will have to decide whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information. All report writers will, therefore, give consideration to this and explain why they consider the public interest test is best served by the information remaining exempt. The final officer determination as to disclosure will be made by the Proper Officer for Freedom of Information decisions (the Director of Legal and Governance) who is also the Proper Officer for decision-making. This determination, together with reasons, will appear in the report and the agenda as well in relation to that item.
6. Governance Committee
   
   All the exemptions may apply to the Governance Committee (and any sub-committees of that) although 7(A), (B) and (C) are specifically applicable to Governance sub-committees when determining complaints alleging breaches of the Members’ Code of Conduct.
   
   
7. Executives
   
   The Local Authorities (Executive Arrangements) (Access to Information) (Amendment) (England) Regulations 2006 taken cumulatively with previous regulations and primary legislation provide that exempt information does not need to be made available for all Members unless it comes within paragraph 3 and 6 of the table set out in rule 10.4. However, in relation to information under paragraph 3 of the table in rule 10.4, this can remain exempt if the information relates to any terms proposed or to be proposed by or to the Authority in the course of negotiations for a contract.

Exclusion Of Access By The Public To Reports

If the Director of Legal and Governance thinks fit, the Council may exclude access by the public to reports which in his or her opinion relate to items during which, in accordance with Rule 10, the meeting is likely not to be open to the public. Such reports will be marked “Not for publication” together with the category of information likely to be disclosed.

Application Of Rules To The Executive

Rules 13 – 24 apply to the Executive and its committees. If the Executive or its committees meet to take a Key Decision, then it must also comply with Rules 1 – 11 unless Rule 15 (general exception) or Rule 16 (special urgency) apply. A Key Decision is as defined in Article 13.03 of this Constitution. If the Executive or its committees meet to discuss a Key Decision to be taken collectively, with an officer other than a political assistant present, within 28 days of the date according to the Forward Plan by which it is to be decided, then it must also comply with Rules 1 – 11 unless Rule 15 (general exception) or Rule 16 (special urgency) apply. This requirement does not include briefings, whose sole purpose is for Officers to brief Members.

Procedure Before Taking Key Decisions

1. Subject to Rule 10 (general exception) and Rule 11 (special urgency), a Key Decision may not be taken unless:
   1. a notice (called here a Forward Plan) has been published in connection with the matter in question;
   2. at least twenty-eight (28) Clear days have elapsed since the publication of the Forward Plan in which the decision was first included; and
   3. where the decision is to be taken at a meeting of the Executive or its committees, notice of the meeting has been given in accordance with Rule 4 (notice of meetings).

The Forward Plan

1. Period of Forward Plan
   
   Forward Plans will be prepared by the Leader to cover a period of four months, beginning with the first day of any month. They will be prepared on a monthly basis and published 28 clear days prior to any regularly scheduled meeting of the Executive.
2. Contents of Forward Plan
   
   The Forward Plan will contain matters which the Leader has reason to believe will be subject of a Key Decision to be taken by the Executive, a committee of the Executive, individual members of the Executive, Officers, or under joint arrangements in the course of the discharge of an Executive function during the period covered by the plan. It will describe the following particulars in so far as the information is available or might reasonably be obtained:
   1. the matter in respect of which a decision is to be made;
   2. where the decision taker is an individual, his/her name and title, if any and where the decision taker is a body, its name and details of membership;
   3. the date on which, or the period within which, the decision will be taken;
   4. the identity of the principal groups whom the decision taker proposes to consult before taking the decision;
   5. the means by which any such consultation is proposed to be undertaken;
   6. the steps any person might take who wishes to make representations to the Executive or decision taker about the matter in respect of which the decision is to be made, and the date by which those steps must be taken; and
   7. a list of the documents submitted to the decision taker for consideration in relation to the matter.
   The Forward Plan must be produced and disseminated at least 28 days before the start of the period covered.

General Exception

If a matter which is likely to be a Key Decision has not been included in the Forward Plan, then subject to Rule 11 (special urgency), the decision may still be taken if:

1. the decision must be taken by such a date that it is impracticable to defer the decision until 28 clear days notice has been given on the Forward Plan;
2. the Director of Legal and Governance has informed the chair of the Overview and Scrutiny Management Committee, or if there is no such person, the Mayor or in his/her absence the Sherriff, by notice, of the matter to which the decision is to be made;
3. the Director of Legal and Governance has made copies of that notice available to the public at the offices of the Council; and
4. at least 5 (five) clear days have elapsed since the Director of Legal and Governance complied with (b) and (c).

Where such a decision is taken collectively, it must be taken in public subject to the provisions of Rule 10 and Rule 19.

Special Urgency

If by virtue of the date by which a decision must be taken Rule 10 (general exception) cannot be followed, then the decision can only be taken if the Director of Legal and Governance, on behalf of the decision taker, obtains the agreement of the Chair of the Overview and Scrutiny Management Committee that the taking of the decision cannot be reasonably deferred. If the Chair is unable to act, then the agreement of the Mayor, or in their absence, the Sheriff will suffice.

Report To Council

1. Overview and Scrutiny Management Committee can require a report
   1. if the committee thinks that a Key Decision has been taken which was not:
      1. included in the Forward Plan; or
      2. the subject of the general exception procedure; or
      3. the subject of an agreement under Rule 11;
      the committee may require the Executive to submit a report to the Council within such reasonable time as the committee specifies. The power to require a report rests with the committee, but is also delegated to the Director of Legal and Governance, who shall require such a report on behalf of the committee when so requested by the Chair or any five Members; or
   2. the requirement may be raised by resolution passed at a meeting of the Overview and Scrutiny Management Committee.
2. Executive’s report to Council
   
   The Executive will prepare a report for submission to the next available meeting of the Council. However, if the next meeting of the Council is within 7 days of receipt of the written notice, or the resolution of the committee, then the report may be submitted to the meeting after that. The report to Council will set out particulars of the decision, the individual or body making the decision, and if the Leader is of the opinion that it was not a Key Decision the reasons for that opinion.
3. Quarterly reports on special urgency decisions
   
   In any event the Leader will submit quarterly reports to the Council on the Executive decisions taken in the circumstances set out in Rule 11 (special urgency) in the preceding three months. The report will include the number of decisions so taken and a summary of the matters in respect of which those decisions were taken.

Record Of Decisions

After any meeting of the Executive or any of its committees, whether held in public or private, the Director of Legal and Governance or, where no officer was present, the person presiding at the meeting, will produce a record of every decision taken at that meeting as soon as practicable. The record will include a statement of the reasons for each decision and any alternative options considered and rejected at that meeting.

Procedures Prior To Private Meetings Of The Executive

1. A private meeting of the Executive shall include any meeting or part of a meeting at which members of the public are to be excluded in accordance with Rule 10.
2. At least 28 clear days prior to any private meeting of the Executive, the Director of Legal and Governance shall publish Notice of the Executive’s intention to hold all or part of the meeting in private, together with a statement of reasons for the meeting to be held in private.
3. At least five clear days prior to any private meeting of the Executive, the Director of Legal and Governance shall publish a further Notice on the agenda for the meeting and the Council’s website confirming the Executive’s intention to hold all or part of the meeting in private, a statement of the reasons for privacy and details of any representations received by the Council as to why the meeting should be held in public and the Executive’s response to those representations.
4. Where the date by which a meeting must be held makes compliance with Rules 19.2 and 19.3 impracticable, the meeting may still be held in private where:
   1. the Director of Legal and Governance has obtained the agreement of the Chairman of the relevant Overview and Scrutiny Committee; or
   2. if there is no such person or such a person is unable to act, the agreement of the Mayor; or
   3. if the Mayor is unable to act, the agreement of the Sheriff.

Notice Of Private Meeting Of The Executive

Members of the Executive or its committees will be entitled to receive five clear days notice of a meeting to which they are summoned, unless the meeting is convened at shorter notice as a matter of urgency.

Attendance At Private Meetings Of The Executive

1. All Members of the Executive will be served notice of all private meetings of committees of the Executive, whether or not they are Members of that committee.
2. All Members of the Executive are entitled to attend a private meeting of any committee of the Executive.
3. Members other than Executive Members will not be entitled to attend private meetings of the Executive, and its committees.
4. The Head of the Paid Service, the Chief Financial Officer and the Monitoring Officer, and their nominees are entitled to attend any meeting of the Executive and its committees. The Executive may not meet unless the Director of Legal and Governance has been given reasonable notice that a meeting is to take place.
5. A private Executive meeting may only take place in the presence of the Director of Legal and Governance or his/her nominee with responsibility for recording and publicising the decisions

Decisions By Individual Members Of The Executive

1. Reports intended to be taken into account
   
   Where an individual Member of the Executive receives a report which s/he intends to take into account in making any Key Decision, then s/he will not make the decision until at least five clear days after receipt of that report.
2. Provision of copies of reports to overview and scrutiny committees
   
   On giving of such a report to an individual decision maker, the person who prepared the report will give a copy of it to the Chair and Vice-Chair of the Overview and Scrutiny Management Committee as soon as reasonably practicable and make it publicly available at the same time.
3. Record of individual decision
   
   As soon as reasonably practicable after an Executive decision has been taken by an individual Member of the Executive or a Key Decision has been taken by an officer, s/he will prepare, or instruct the Director of Legal and Governance to prepare, a record of the decision, a statement of the reasons for it and any alternative options considered and rejected. The provisions of Rules 7 and 8 (inspection of documents after meetings) will also apply to the making of decisions by individual members of the Executive. This does not require the disclosure of exempt or confidential information or advice from a political assistant.

Overview And Scrutiny Committees Access To Documents

1. Rights to copies
   
   Subject to Rule 23.2 below, Overview and Scrutiny Management Committee (and its sub-committees) will be entitled to copies of any document which is in the possession or control of the Executive (or its committees) and which contains material relating to
   
   1. any business transacted at a public or private meeting of the Executive or its committees; or
   2. any decision taken by an individual Member of the Executive; or
   3. any decision taken by an officer of the authority exercising an Executive function.
2. Limit on rights
   
   An overview and scrutiny committee will not be entitled to:
   1. any document that is in draft form;
   2. any part of a document that contains exempt or confidential information, unless that information is relevant to an action or decision they are reviewing or scrutinising or intend to scrutinise; or
   3. the advice of a political adviser.
3. Copies of documents requested under Rule 23 must be supplied within 10 clear days of receipt of the request.

Additional Rights Of Access For Members

1. Material relating to previous business
   
   All Members will be entitled to inspect any document which is in the possession or under the control of the Executive or its committees and contains material relating to any business previously transacted at a private meeting unless either (a), (b) or (c) below applies:
   
   1. it contains exempt information falling with paragraphs 1-2, 4-5 and 7 of the categories of exempt information; or
   2. Paragraph 3 of Schedule 12A of the Local Government Act 1972 (as amended) to the extent that the information relates to any terms proposed or to be proposed by or to the authority in the course of negotiations for a contract; or
   3. it contains the advice of a political adviser.
2. Material relating to Decisions
   
   All members of the Council will be entitled to inspect any document (except those available only in draft form) in the possession or under the control of the Executive or its committees which relates to any decision of the Executive made at a public meeting unless paragraph (a), (b) or (c) above applies.
3. Nature of rights
   
   These rights of a Member are additional to any other right s/he may have.

Confidentiality Of Council Business

1. Any item of business at Full Council, a Committee or Sub-Committee which falls to be dealt with as confidential and the relevant body's discussion in relation to the item shall be kept confidential and may only be disclosed to and discussed by the following:
   
   1. Councillors;
   2. other persons appointed under Section 102 of the 1972 Act as members of Committees or Sub-Committees;
   3. such officers of the Council as are concerned with the matter in the course of their duties;
   4. the Designated Independent Person (in respect of Members complaints under the Code of Conduct)
   5. such other persons to whom in the Director of Legal and Governance opinion the item of business or report ought to be disclosed in order to comply with the Human Rights Act 1998 or any rule of law or to avoid maladministration by the Council;
      and there shall be no further disclosure of such report, item of Council business or discussion thereof to any other person whatsoever.
2. The business referred to in Council Procedure Rule 25.1 consists of any report marked "not for publication" in accordance with the requirements of the 1972 Act or an item of Council business which has been agreed as being confidential by the Committee or Sub-Committee concerned, or by the Council in accordance with the 1972 Act.
3. Subject to the Council Procedure Rules, a member of a working party or panel set up by the Council, a Committee or Sub-Committee (including any working party or panel established for the purpose of meeting and holding discussions with an individual, body of individuals or organisation distinct from the City Council) being a working party or panel comprised of Members or Members and co-opted members or Members and officers, or Members co-opted members and officers, shall not disclose a matter dealt with by or brought before the working party or panel, without its permission until the proceedings of that working party or panel have been reported to the Council or to the Committee or Sub-Committee which set up the working party or panel, or the working party or panel shall otherwise have concluded action on that matter.
4. An item of business or report shall remain confidential until its confidentiality is removed by decision of the Committee or Sub-Committee concerned, or by the Full Council or in exceptional circumstances, the Director of Legal and Governance.

Additional Rights To Information

These rules do not affect any more specific rights to information contained elsewhere in this Constitution or the law.