Saturday, August 01, 2009

It may be policy ... but is it legal?

The way councils pay lip service to open government while riding roughshod over the right of the public to have a say in their decisions is one of those things that drive me mad.

Take Leicester City Council's decision to meet in private to discuss plans to knock down an historic local bridge and sell off the land to De Montford University so that it can build a £6million sports centre and swimming pool.

Would it be a good decision to pave the way for the new sports facilities? I don't know, but I do know that there is a huge amount of opposition locally to the plan because something similar has been mooted before and there was uproar.

But it's not the outcome that is worrying me, it's the council's decision to discuss this in private, excluding the public from the discussion and marking the papers 'not for publication' so that nobody can see the details. Why don't I like that?

Firstly: it may be illegal.
Secondly: and probably more importantly, it flies in the face of the council's alleged belief in open government.

Let's tackle the law first. Of course, the Mercury is not allowed to see the papers because they are confidential ... but somebody has chosen to leak them to us because they feel that the debate should be aired in public. The report author, Jeannette Franklin, a principal valuer at the city council, says her work is marked 'Not for Publication' because it contains exempt information as defined in Paragraph 3 of Part 1 of Schedule 12A of the Local Government Act 1972 because it details 'information relating to the financial or business affairs of any particular person (including the authority holding that information).

I know, I know, stay with me - it is important.

With all due respect to Ms Franklin, it's unlikely that she made the decision that this information should be kept secret. The report is put forward in the name of Neil Gamble, the interim director of strategic asset management. But even then, my guess is that he didn't make the decision - it's quite normal in councils for a senior councillor (eg chair of the relevant committee) and a senior council officer (eg chief exec or relevant director) to get together and decide what is going into the secret part of any meeting.

However, we need to back up a little. The paper is said to contain exempt information, but exempt from what?

Well, the Local Goverment Act 1972 contains the following line: Copies of the agenda for a meeting of a council and ... copies of any report for the meeting shall be open to inspection by members of the public.

It goes on to say:
If the officer thinks fit, there may be excluded from the copies of reports provided ... the whole of any report which, or any part which, relates only to items during which, in his opinion, the meeting is likely not to be open to the public.

So, the Act says that all papers being considered by the council must be available for public inspection unless those papers will be discussed in a part of the meeting which will be private. And, earlier in the Act, it says that all meetings must be open to the public unless that part of the meeting will discuss information which is exempt as defined in Schedule 12A of the Act ... which is what Ms Franklin refers to.

On the face of it, you'd say she was right. She says the document contains information about financial or business affairs.

And it does. It tells us that the council will sell some land to the university for £1, spend £472,000 knocking down the bridge and then receive something like £750,000 from the university as part of the deal.

And that is, I am sure, how the council sees it. We queried the decision to hold the meeting in private and were told as much - the report contains financial information and it is council policy to hold such discussions in private. We pointed out that the financial information had been all over the front page of the Mercury and were told it made no difference - that's the council policy.

And there, in a nutshell, is my issue with councils. They cannot have a policy that says all discussions involving such financial details will be held in private - it's not legal. It's against the law.

I know that my own analysis above shows that, on the face of it, the 1972 Act says they can discuss this in private, but there is another part of the Act which over-rules the bit they are quoting ... and it's something they always ignore.

Part 1 of Schedule 12A lists those bits of information that can be exempt from the requirement to be made public ... but Part 2 adds some qualifications to those exemptions.

It specifically says the information
is exempt information if and so long, as in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

In other words, if the public interest is better served by the information being open, they cannot discuss it in private or hide the papers away. And they are required to consider this every time they make the decision to squirrel away information into a secret meeting. And they don't.

So let's look at this case. Why is this financial information better hidden away? Would it's publication endanger the deal? Not a chance - the deal is done, it's agreed. Would it jeopardise future deals? How? I can't see it.

There are a few other businesses involved who will be made to leave premises that will be knocked down (not least the Pump and Tap pub). But the report makes it clear that they get no say - they are going whether they like it or not. So what is the council saying? Is it best that these businesses don't find out until after the decision is made?

So there seems little to substantiate the argument that there is good public interest cause to discuss this in private, but what about the public interest in discussing this in the open?

Well, as I've already pointed out, there is massive public interest in the decision. There is a great deal of opposition - more than 3,000 people belong to a Facebook group opposing the plan, nearly 1,300 signed a petition on the Prime Minister's website, Leicester Civic Society is desperately trying to get the bridge designated as a listed building and, it appears, English Heritage is about to make a decision.

So exactly how do the scales of public interest come down on the side of the council's lightweight argument for secrecy?

Which brings me to the second part of my dismay - why do councils insist on saying they believe in open government and then decide to talk about controversial decisions in private?

Leicester's cabinet member for regeneration, Councillor Patrick Kitterick, sums up the attitude in Friday's Mercury when he says it is in private because the document includes the price of selling the land. 'That's always been our policy and there will be more opportunities for people to have their say.'

Yeah, right, thanks a bunch. You don't care what the law is and we can have our say after you've made the decision. Great.

UPDATE: The Mercury's political writer Martin Robinson has commented on the same issue on is blog:

Thursday, July 30, 2009

And our new football writer is ... not a Leicester City fan

I'm really pleased to say that we've found a great talent to take over as our chief Leicester City writer.

Rob Tanner will be joining us from the Birmingham Post and Mail in the next couple of weeks - he's been covering West Midlands football for the past decade.

Following on from my earlier post, I can confirm that he is not a Leicester City fan. I got an interesting response to my post on this point, with 'readers' being split 50:50 on the importance of his allegiance, and journalists being 100% certain it was totally unimportant! In the end, I think the most important thing was whether or not we could find a great football writer. I had next to no City fans apply for the job which sort of made the decision for me, but it is clear that Rob has a good knowledge of football and it won't take him long to get up to speed on City.

I'm really excited that we've got a new writer to go along with a new season in a higher division ... and we're planning expanded coverage including a 16 page sports supplement for every Monday.

Here is the name of our secret source ...

Dear Mr Goodman

Thank you for your letter asking me to name the person who handed over the confidential documents which showed that Leicestershire Fire and Rescue Service was considering closing two fire stations in the county.

As requested, here is the name of the person who gave us the document: Ivor Story. He's an admin grade officer based at County Hall and his mobile number is 07976 78789. I hope that helps with your investigation.

Yes, that's right, journalists are always happy to name their sources. In fact, while I'm at it, would you like to know the name of the person who handed over the confidential documents that form the basis of our front page lead in tomorrow's Leicester Mercury? Or, perhaps, the real identity of Deep Throat?

What is it with council officials? Don't they have a proper job to do? Is Guy Goodman, solicitor and monitoring officer at the fire authority, so under-worked that he has time to waste writing to me asking me to reveal our source? Of course, he didn't decide to do it off his own bat - he was told to conduct an investigation by the Chief Fire and Rescue Officer, with the agreement of the Chairman of the Combined Fire Authority no less!

In a very formal letter addressed to me and marked 'Personal, Private and Confidential', Mr Goodman says: 'The unauthorised disclosure of this confidential report was a serious breach of both the Members' and Officers' Codes of Conduct. It is important that the source is identified and appropriate action taken.'

Important to who?

For the avoidance of doubt, it wasn't Mr Story. I made that up. Ivor Story (get it?)

Why won't I tell you? Apart from the obvious answer that says that nobody would leak information to the media if we revealed our sources, the Press Complaints Commission code of conduct, paragraph 14, Confidential Sources, says: 'Journalists have a moral obligation to protect confidential souces of information.'

And it's not just the code of conduct, the law is on my side (although I guess you already know that since you're a lawyer).

It seems likely that Section 10 of the Contempt of Court Act 1981 would back our decision:

'No court may require a person to disclose ... the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.'
And Article 10 of the European Convention of Human Rights would seem to add further to our defence:
'(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...'
The approach of the European Court of Human Rights as to the role of article 10 in achieving this was clearly set out by the court in Goodwin v United Kingdom (1966) 22 EHRR 123 in these terms:

    "39. The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.

    Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with article 10 of the Convention unless it is justified by an overriding requirement in the public interest."
So, Mr Goodman you will have to continue your investigation without our help. Unless, of course, you could find a better way to spend your time.

The moral outrage often expressed by council officials and elected members when they decide to hunt down somebody responsible for a leak is, at best, often disingenuous. So many of them leak documents when it suits them that they can't really expect to be treated seriously when they mount a high horse. I remember, many years ago, sitting in a council chamber listening to a council leader describing me as public enemy number one and saying that he would not rest until he had tracked down the source of a particular leak. There were two people in that chamber who knew who the source was - me, and the person who leaked it ... the council leader.