We received two letters within a matter of minutes on Thursday - one from council leader Ross Wilmott, the other (sent to our solicitors and subject of this post) from the Director of Legal Services, Peter Nicholls.
From the hysterical - read that how you like - reaction of the council you'd think I'd been sneaking into their homes at night and eating their children as they sleep! I haven't - I'm simply asking that they use the law to make their decisions more open and transparent, rather than using it to hide behind and dodge the scrutiny of the public.
I don't know why I am surprised. I know it's sad - and I'm not recommending you do the same unless you suffer from insomnia or share my morbid fascination with local democracy in action - but I recently spent a couple of evenings watching more than seven hours of webcasting of a couple of the city council's most recent meetings. What struck me more than anything else was the total lack of respect shown by councillors for members from the opposite side of the chamber - it doesn't matter how reasonable a question is, the response always begins with a childish, snide comment. It was a bit like watching Prime Minister's Question Time from the House of Commons without the intellect or wit.
It reminded me of Dennis Healey's great put down of Geoffrey Howe in 1978 when he likened criticism from the Tory grandee to 'being savaged by a dead sheep' ... which brings me neatly back to Mr Nicholls letter.
You can read it in full here - and my next post will be the response I have sent to him - but it concludes with the threat:
'(Monday's) Cabinet meeting handled the question as to whether the public be allowed access to the meeting lawfully, very much in the public interest, and I ask that (the Mercury) will support and work with the Authority to avoid unnecessary publication of leaked information which has the effect of undermining the democratic process and unnecessarily wasting public money.Whatever can he mean? Held responsible? I am always responsible for what goes in the Mercury - I know that I go to prison if the paper gets it wrong and commits contempt of court, I know that I can be personally sued if we libel somebody, and, in a wider sense, I know that everybody thinks I am responsible for everything in the paper.
'A failure by (the Mercury) to respond positively and provide an assurance to this affect will be regarded as a refusal to accept the seriousness of the position and your client will be held responsible.'
Mr Nicholls, you ask that I work with the authority to avoid unnecessary publication of leaked information. I will. I am. The only reason that it is necessary to publish leaked information is that you, as an authority, put too much information into the private part of your meetings. If you stop doing that, we won't publish leaked information - we'll publish the information that is in the public domain. I am working with you - it is me that is bringing up the issue and asking you to put public interest information into the public domain, thereby removing the need for us to publish leaked information.
You're right, of course, all this 'private' information does have the effect of undermining the democratic process. There is nothing democratic about private meetings. I am happy to work with you to bring much more of it into the public.
The crux of this spat is the Mercury's claim that the council operates an unlawful blanket policy of sticking stuff into private meetings without first considering - as it is legally obliged to do - whether or not the public interest would be better served by the debate being in public.
In his letter, Mr Nicholls himself describes this as a balancing act - you need to weigh what damage might be done by publication of the information and put that against the benefit of public debate. And, of course, Mr Nicholls goes on to say that the council always does this.
Then he goes on to show, very precisely, exactly how they do NOT by detailing how the balancing act was done in Monday's meeting.
Remember, the debate into this at the meeting was prompted by our legal challenge. Mr Nicholls says he summarised our letter to the councillors and that they then carried out the balancing act, weighing out the two sides of the argument.
He says that cabinet members noted that the report included commercially sensitive (see my next post as to why that's not true) and business issues, which he then lists. Ok, that's one side of the balance dealt with.
And on the other side? In favour of debating in public? Oh, nothing? Councillors were not told of any argument in favour of open debate? Not even the council's much-vaunted supposed belief in open and transparent government? Or the weight of public interest in the topic?
The Information Commissioner - the man given the responsibility for policing such things as the Freedom of Information Act - suggests things which should be considered when applying the public interest test (although he is talking about the FoI at the time):
'Examples of arguments that could weigh in favour of disclosureWe get none of this. The council carries out a balancing act without ever looking at the other side of the scales - the net result is, de facto, an unlawful blanket policy that always puts certain sorts of information into private discussion, excluding the voters and taxpayers from having their say.
• General arguments in favour of promoting transparency, accountability and participation
• Disclosure might enhance the quality of discussions and decision making generally.
• The balance might be tipped in favour of disclosure by financial issues. For instance, if the information requested involved a large amount of public money, this might favour disclosure.
• The specific circumstances of the case and the content of the information requested in relation to those circumstances.
• The age of the information might tip the balance in favour of disclosure. The passage of time may impact upon the strength of the public interest arguments.
• The impact (beneficial or otherwise) of disclosure upon individuals and /or the wider public.'
I want to go further and say that the council never properly scrutinises those factors which it says mean something should be heard in private - I will go into this in much more detail in my next post, but here's one example.
Councillors were particularly upset that we revealed that it would cost up to £472,000 to demolish Bowstring Bridge. Councillor Patrick Kitterick was scandalised by our scant regard for 'confidentiality' of this figure, going as far as to suggest that our 'revelation' could cost taxpayers' a 'six-figure sum' as the council actually hoped to get it much cheaper than that. According to the senior cabinet member, demolition companies in the country will now form a cartel and agree not to bid less than that - I kid you not, he actually said this. He said they would band together, break the law, and diddle the taxpayers of Leicester of more than £100,000.
Putting aside the ludicrous nature of this claim, let's take a quick look at just how confidential that figure was.
For at least the last five years, the council itself has listed the cost of demolishing the bridge at £466,000 in literally dozens of public papers. That's right: the council. You can see it here, and here, and here ... and in many other places on the council's website.
Were councillors told this when deciding the weight of this point for the public interest test? No. They just went along with the assumption that any figure relating procurement must be confidential. As I've said, I'll be posting later showing that the same could be said about most of the arguments used by the council to discuss the fate of the bridge in private.
As I've also said before, what depresses me most about this whole affair is not whether or not the bridge is demolished, or even whether or not it is discussed in public, it is the fact that the council cannot step back, leave aside its petty politicking for one moment, and consider seriously its commitment to open and transparent government. They are so outraged that anyone should dare to challenge them, that they will not stop and look at the issue.
