Under the Freedom of Information Act (FoIA) the Audit Commission has the
right to refuse to disclose any part of the information requested if exemptions
defined within the FoIA apply. After consideration of the information
requested, the Commission has concluded that in this case exemptions apply
and therefore some information is excluded from our response, as follows:
Minutes of the July 2008 meeting
The Minutes of the July 2008
are
currently in draft form, and are therefore
being withheld at this time via Section 22 of the FoIA - Intended for future
publication. Once the draft minutes receive approval by the Board at its next
meeting on 23 October, the minutes will be prepared for disclosure.
The Commission’s Corporate Governance Framework reserves the approval
of the minutes to the Board alone. The Commission believes that the public
interest in withholding the July 2008 minutes at this time outweighs the public
interest in disclosure because there is a public interest in the Commission
following procedures – for example, taking minutes; producing and circulating
a draft set of minutes; the review and sign off by the attendees of the meeting
– that enables the effective conduct of public affairs. The proposed timescale
for the preparation and publication of the minutes is believed to be
reasonable.
Section 33 – Audit Functions
The Commission believes that disclosure of the information denoted in the
minutes by the wording
[Section 33] could harm relations between the Audit
Commission and specific Audited and Inspected Bodies (AIBs). This would
affect the ability of the auditors to carry out their functions effectively.
The Commission believes there is a public interest in the disclosure of
information that would lead to greater public confidence in the integrity of the
audit process. However, there is a strong public interest in the Commission
facilitating accountability and transparency in the spending of public money
via the audit process; there is therefore a clear public interest in protecting the
effectiveness of the Commission’s audit functions. The Commission believes
that the public interest in withholding the information highlighted outweighs the
public interest in disclosure because the risk of substantial damage to the
relationships between the Commission and the specific AIBs, which would in
turn damage the effectiveness of our audits.
Section 36 – Prejudice to effective conduct of public affairs
Section 36(2)(b)(i) – likely to inhibit the free and frank provision of
advice
Section 36(2)(b)(ii) – likely to inhibit the free and frank exchange of
views for the purposes of deliberation
In the reasonable opinion of the Audit Commission’s qualified person (Steve
Bundred, Chief Executive), the disclosure of the information denoted in the
Minutes by the wording
[Section 36(2)(b)(i)] and
[Section 36(2)(b)(ii)] would
be likely to inhibit either the free and frank provision of advice or the free and
frank exchange of views for the purposes of deliberation.
The Commission recognises that the status of the minutes is unlikely to justify
the application of an exemption; however, the fact that they record meetings
of the most senior officials of the Commission does mean that sensitive
matters are regularly discussed. The minutes therefore contain reference to
advice provided to the Board from both internal and external sources on a
variety of topics, for example, Comprehensive Area Assessment (CAA),
working emerging from studies, draft policy proposals and new projects.
Public disclosure of such advice prior to a final decision being reached on the
topic under discussion would be likely to harm the volume and nature of the
advice sought and received in future. There is a risk that external sources
would be less likely to engage with the Commission – especially if there is no
obligation to work with the Commission – and internal sources would refrain
from providing unwelcome advice.
The minutes also record the discussions of the Board members; their
observations and suggestions on the topics under discussion, and their views
on how best to proceed. The information therefore reveals the internal
processes – the expressions of opinion; opinion forming; recommendations
and evaluations that are essential in ensuring a robust review process is
undertaken at the most senior level of the Commission.
The public disclosure of this information would be likely to decrease and/or
suppress the freedom with which opinions or options are expressed, harming
the frankness and candour of the deliberations. This is because many of the
topics covered are current and a final view has not been reached. There is
therefore a risk that disclosure of free and frank views expressed while topics
are being discussed would enable differences of opinion and/or any concerns
raised to be used by interested parties to influence the Commission. The
disclosure of such information once a decision has been reached – i.e. once a
particular methodology / process is in place, or policy agreed – would be a
different matter, as the Commission would need to weigh up the benefits of
demonstrating that decisions are being taken on the basis of the best
available information and after robust deliberations, against the harm that may
still be caused by disclosure. Such issues have been considered when
assessing the information that has been disclosed.
The Commission believes that it is striking the right balance between
openness and transparency in the decision making of senior officials and
ensuring that the Commission is able to partake in candid, robust discussions
while addressing often sensitive matters without there being a detrimental
impact on the quality of decision making.
Section 36(2)(c) – likely otherwise to prejudice the effective conduct of
public affairs
In the reasonable opinion of the Audit Commission’s qualified person, the
disclosure of the information denoted in the Minutes by the wording
[Section
36(2)(c)] would be likely otherwise to prejudice the effective conduct of public
affairs.
This is because the disclosure of the information would harm the relationships
it has with government departments and Audited and Inspected Bodies; these
relationships are essential in ensuring that the Commission can continue to
meet its wider objectives. Disclosure of the information would be likely to
disrupt these working relationships, and would be likely to require a diversion
of resources to manage the impact of the disclosure.
Public Interest
The Commission recognised the public interest in open decision making, and
that such openness may lead to increased trust and engagement between
citizens and the Commission. More open decision-making can result in better
policy formulation, with a wider range of views and opinions being canvassed.
To that end, 71% of the information contained in the minutes is being
disclosed. [Based on total word count of all 9 sets of minutes before and after
removal of exempt information]. Also, the decisions reached in relation to the
topics being discussed - recorded in the minutes in bold text, starting with the
words
The Board… - are being disclosed in full in all but one case. The
policies and methodologies followed by the Commission, and our final reports,
are also in the public domain.
However, the timing of any request for minutes is of vital importance.
Disclosure of ongoing discussions and current topics – before a consensus is
reached or a final decision is made – is not in the public interest, as Board
members are entitled to expect the time and space necessary to receive
advice, discuss issues and explore safe and radical options and opinions
without the threat of publicity undermining their ability to conduct a robust
analysis of the issues.
The minutes relate to a period of some 14 months, from April 2007 to June
2008. They therefore cover a period that is relatively contemporary, especially
given the long-term nature of many projects that the Commission is involved
in. There is therefore a strong public interest in senior Commission officials
having the space to develop their thinking and explore options, to receive
advice and engaging in communications and discussions with others without
the threat that their preliminary views are made public. It is in the public
interest that rigorous and candid assessments of current and emerging work
is undertaken in the knowledge that, where justify, the information will be
withheld. The Commission believe that the public interest in withholding the
information highlighted does outweigh the public interest in disclosure.
Section 40 – Personal data
The Commission believes that disclosure of the information denoted in the
Minutes by the wording
[Section 40] would breach one of the eight Data
Protection Principles defined by the Data Protection Act 1998 (DPA).
Section 40(2) of the FoIA exempts the personal information of third parties if
its disclosure would breach one of the eight Data Protection Principles defined
by the DPA.
In this instance, it was considered that the disclosure of third party personal
information would breach the First Data Protection Principle because the
individuals involved do not expect their personal information to be made
publicly available. They have a reasonable expectation that their personal
information will remain confidential between the council and themselves,
especially as they are not informed that their personal information may be
made publicly available in response to a Freedom of Information request.
To disclose the third party personal information into the public domain would
therefore be unlawful (a breach of confidence) and unfair (they were not
informed); this would therefore be a breach of the first Data Protection
Principle, which states that personal information shall be processed fairly and
lawfully. Also, the Commission does not consider there to be a valid Schedule
2 condition, also required in order to disclose the information.
