Floodgates opened … ? As it, presumably, also applies to former district councillors too, there may be some sleepless nights here for some of them!
A tribunal has ordered North Norfolk District Council to publish a draft report into the conduct of the former chair of a parish council.
The district had argued that disclosure of the report would have been unfair as it related to the chair’s personal data.
A dispute among residents had broken out in the parish of Hickling in 2014 over whether the Hickling Playing Field or Recreational Ground Charity needed to change its constitution to increase the degree of protection from development given to a historic barn.
‘C’, then chair of Hickling Parish Council, was quoted in a local newspaper as saying the charity had shown no desire to negotiate a new constitution and “they don’t want to make changes to the constitution to protect the village asset and it’s very sad”.
A resident then complained to North Norfolk’s monitoring officer that C had made factually inaccurate comments and deliberately misled readers, amounting to a breach or breaches of the Councillors’ Code of Conduct.
North Norfolk’s monitoring officer appointed an external solicitor to investigate the complaint. She submitted a draft final report for North Norfolk’s standards committee after C had ceased to be a councillor, the chair having lost her seat in the election of May 2015.
The monitoring officer decided that there was “no public benefit” in taking the matter further because C was no longer a serving councillor.
When another resident requested a copy of the draft report, North Norfolk refused – relying on s. 40(2) FOIA – on the grounds that the draft contained personal data about C who no longer held a public position.
The dispute then reached the Information Commissioner’s Office, which accepted C would have had a legitimate expectation that the details of the investigation would remain confidential, North Norfolk’s policy was that draft standards investigation reports were not shared with persons who were not parties to the complaint, and the prejudice to C’s interests outweighed any legitimate public interest in disclosure.
The complainant then appealed to the Information Rights Tribunal, which said in Janet Dedman v IC EA/2016/0142 that there was no doubt that the report contained the personal data of C and that there was no practical possibility of editing it so as to avoid the disclosure of such data.
However, the tribunal added: “There is plainly a strong public interest in the disclosure of findings as to the conduct of the chair of a parish council when performing her public duties.
“That is especially the case where a complaint has been made that she misled a newspaper and its readers, including her local parishioners, as to important matters relating to a controversial local issue. There is a danger that the withholding of a report may encourage the suspicion that its findings are adverse to the subject, whether or not that is, in fact, the case.”
It was hard to see how or in what substantial respects, the report’s findings of fact or its final conclusions could properly have been altered by the standards committee, had it been submitted to them, the tribunal said.
The tribunal said the Information Commissioner’s decision notice had treated a draft report, ipso facto, as a quite different creature from a final report without apparent consideration of the practical differences that might have existed in this case.
“Of course, if the draft awaited further assessment by a fact finder or a senior solicitor, the difference might be substantial. Here, we assess that it would have been minimal. Given that there never will be a final report that is a significant finding.”
It meanwhile suggested that the public interest in disclosure was “affected minimally, if at all,” by C losing her seat.
“The public is entitled to know whether a serious complaint as to the conduct of an elected representative was found to be justified, regardless of her status when the report is disclosed,” the tribunal said.
“Such transparency is essential to the maintenance of proper standards in public life, whether or not the subject of the complaint remains in office.”
It pointed out that were this not so “a delinquent public officer, faced with a draft report containing serious criticism of his/her conduct, could simply prevent disclosure by timely resignation”.
The tribunal said there was a realistic possibility that C would again seek election to the parish council or another public authority in the future.
“That being so, the electorate should be apprised of the findings of the draft report, whether favourable or adverse to C. In seeking election in the future, she should neither be prejudiced by unjustified suspicions as to her past conduct nor, as the case may be, protected from disclosure of a past breach or breaches of the Code of Conduct.”
The tribunal found that the public, especially the local community, had a powerful legitimate interest in disclosure of the requested information and that C could have no reasonable expectation that it would not be disclosed in the circumstances that arose.
“That it was a draft report and marked “confidential” when received was no obstacle to disclosure nor was the fact that C was no longer in office. For the purposes of Condition 6(1) of DPA Schedule 2, Mrs. Dedman had a legitimate interest in knowing the findings of the draft report which could only be satisfied by its disclosure,” the tribunal said.
“For the reasons already discussed, disclosure was not unwarranted by reason of prejudice to C’s rights, freedoms or legitimate interests. If there was such prejudice, it was clearly justified in this case, given the public role undertaken by C and what she might reasonably expect as to publicity for the findings of such a report.”
The tribunal concluded that accordingly disclosure was not unfair and North Norfok was not entitled to rely on the s.40(2) exemption.
North Norfolk had no comment on the ruling.