Dear Department for Communities and Local Government,

Recently you consulted on draft regulations called The Openness of Local Government Bodies Regulations 2014. This FOI request is for a copy of responses received by DCLG in response to this consultation. Please note for clarity I am requesting consultation responses on both the draft regulations and the proposed guide.

If consultation responses (or responses about the guide) don't specify which individual or organisation it is from could you supply this information please?

In order to help you answer this Freedom of Information request I include below a copy of a letter dated 10th February 2014 sent by DCLG to the LGA, NALC, SOLACE and Lawyers in Local Government asking for responses by the 12th March 2014 which contains the contact details of those at DCLG who were receiving the responses.

Paul Rowsell
Deputy Director – Democracy
Department for Communities and Local Government
3/J1, Eland House
Bressenden Place
London SW1E 5DU

Tel 0303 44 41858

Email [email address]

Carolyn Downs
Chief Executive
Local Government Association
Via email

10 February 2014

DRAFT REGULATIONS: OPENNESS OF LOCAL GOVERNMENT BODY MEETINGS

As you know, the Government is minded to make, as soon as practicable, regulations under section 40 of the Local Audit and Accountability Act 2014 about filming and the use of social media at council meetings and the recording of decisions taken by officers under delegated powers. I am now writing to invite your Association both to comment on the enclosed draft Regulations, for which I also enclose a descriptive summary, and to work with us over the next month or so on developing a Plain English Guide to accompany the Regulations.

You will see that the draft Regulations (The Openness of Local Government Bodies Regulations 2014) would, if approved by Parliament (these Regulations are subject to the affirmative resolution procedure) and made:

• Require local government bodies to allow any persons including professional journalists to attend, film, audio record, take photographs or provide commentary on the proceedings at public meetings;
• allow persons wishing to report or provide commentary on the proceedings at a meeting to use any communication means such as the internet to produce the result of their activities;
• require local government bodies to keep written records of material decisions taken by officers under delegation from the relevant local government body, its committees, subcommittees or joint committees; and
• make it an offence for a person to intentionally obstruct, or refuse to make available for inspection by members of the public, documents relating to these decisions.

We will be in touch very shortly about a meeting on the Plain English Guide, which could also be an opportunity for you to provide comments on the drafting of the Regulations. In any event, we would be grateful for all comments on the draft Regulations by 12 March 2014.

As to the Plain English Guide to accompany the Regulations, we envisage a Guide which will incorporate the existing Guide on openness (Your council’s cabinet – going to its meetings, seeing how it works) which applies to meetings of a council’s executive and will cover such matters as what would constitute ‘disruptive behaviour’ at a meeting, and what the public should do if they wish to film a meeting.

I am writing similarly to the National Associations of Local Councils, the Society of Local Authority Chief Executives and Lawyers in Local Government.

If you have any queries on the draft Regulations, please refer them to Hannah Brook (0303 444 1858, [email address]) and Eleanor Smyllie
([email address]).

Yours sincerely
Paul Rowsell

Yours faithfully,

John Brace

Dear Department for Communities and Local Government,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Communities and Local Government's handling of my FOI request 'consultation responses to draft "The openness of local government bodies" regulations and guide'.

Thank you for your response to my FOI request. I have read through each file but do not see any communication from the Mersey Fire and Rescue Authority. I know it was discussed and was an agenda item at their meeting of the 27th February and officers had recommended to councillors on the Mersey Fire and Rescue Authority a response to what they regarded as a consultation from DCLG on the Openness of Local Government Bodies Draft Regulations 2014. It is of course possible that councillors decided not to send the suggested response, but it would be useful if you could supply any response from the Mersey Fire and Rescue Authority (if received) or state that you didn't receive one.

The rest of this FOI request is about the redactions of "personal information" you state you have made because of an exemption in s.40 of the Freedom of Information Act 2000 relating to personal data of DCLG officials and those replying to the sounding exercise/consultation.

You state "I consider that disclosure of the information would breach the fair processing requirement of the first data protection principle as well as failing to comply with any of the Schedule 2 conditions since the officials and persons in question would not have a legitimate expectation that their names and involvement in a particular policy or event would be made public knowledge."

I realise there is not a public interest test for this exemption, however I would like to make some points. I myself (as did others) made submissions on the Local Audit and Accountability Bill (before it became the Local Audit and Accountability Act) and these written submissions about proposed legislation were published on Parliament's website. You can see my submission here http://www.publications.parliament.uk/pa... . There were other people and organisations that commented on that proposed legislation and their submissions were also published. No redactions were made of the author's names and I don't understand why it should be any different for responses about secondary legislation.

There is the issue of whether it was a consultation on the draft regulations or a sounding exercise (which is referred to in at least one of the responses). My FOI request (and a number of the responses you received) referred to a consultation as that was the impression that many people got was happening.

Those individuals/organisations that commented on the draft regulations under the impression that DCLG was having a consultation on them on the draft regulations would have a "legitimate expectation that their names and involvement in a particular policy or event would be made public knowledge." as consultation responses are usually published in full at the end of the consultation period.

The specific responses that refer explicitly that they are replying to a consultation are the email from Alton Town Council, the response from the Association of Democratic Services Officers, the response from Bracknell Forest Borough Council, consultation is also referred to in the file LLG.pdf although I am not sure from which body this response was received, the response from the National Association of Local Councils, the response from Nottinghamshire County Council, a response from an unknown parish Council in file Parish Council.pdf and the response from Transport for London.

Therefore I request that these eight responses are published without redactions as each respondent thought that they were responding to a consultation, therefore there was a legitimate expectation that their responses would be published at the end of that consultation without redactions.

The Information Commissioner's Office has a guidance to public authorities on the application of a s.40 (personal data) exemption to an FOI request which can be read on their website at http://ico.org.uk/~/media/documents/libr... .

The guidance on page 3 states that when assessing whether disclosure is fair that it involves considering "the reasonable expectations of the individual, taking into account: their expectations both at the time the information was collected and at the time of the request; the nature of the information itself; the circumstances in which the information was obtained; whether the information has been or remains in the public domain; the FOIA principles of transparency and accountability;"

Your response "I consider that disclosure of the information would breach the fair processing requirement of the first data protection principle as well as failing to comply with any of the Schedule 2 conditions since the officials and persons in question would not have a legitimate expectation that their names and involvement in a particular policy or event would be made public knowledge." considers the first part of this requirement but doesn't comment on the FOIA principles of transparency and accountability.

There is also a lot of internal consistency in how the redactions have been made. For example Lord True's response (who is responding in his capacity as the Leader of the London Borough of Richmond upon Thames) has only his signature redacted.

The response from the parish council states "we considered the draft at our parish council last night" implying it comes from a politician also yet their name is redacted (and so is the name of the parish council).

So is the email address that this person is replying from and to. The names and email addresses of DCLG officials dealing with this sounding exercise have already been made public as the letter referred to in my FOI request has been published on the whatdotheyknow.com website and elsewhere.

In other cases the redacted names have already been published elsewhere and can easily be revealed. For example the response from Hampshire Fire and Rescue Authority is from the Chairman. This page http://www.hantsfire.gov.uk/theservice/o... states "the Authority's Chairman is Councillor Royston Smith". Therefore it seems pointless to redact his name when this can be ascertained from the fact he is the Chairman.

The response from Kent, Fire and Rescue Service in the name of Ann Millington, Chief Executive has a variety of information blacked out including her contact details such as telephone number, fax and minicom details. However these details are already published elsewhere for example http://www.kent.fire-uk.org/pdf/b5.%20na... .

I could go through each response pointing out redactions don't seem to be a valid use of the exemption for similar reasons outlined above. However in general the officers replying to the consultation are senior officers of whatever body they are responding to DCLG from. The Information Commissioner's Officer has taken the view that due to the seniority of the officers's details redacted (I think in previous decision notices a threshold of an annual salary of £50,000 or more has been used) that using a s.40 exemption to redact their names, contact details etc isn't allowed as at that level of seniority they have to expect a certain level of public attention and scrutiny as to their role.

I am not sure of the salary grade of the officials at DCLG you have redacted (although I notice you have not redacted all the names of DCLG officials). I would expect though that any names or personal details of officials earning £50,000 or more a year should be unredacted. I am happy to give references to previous decision notices that go into this in detail if it will aid you in your internal review.

To conclude I request that you release all the information you have released to this request in an unredacted form for the reasons outlined above, including detailing the response from Merseyside Fire and Rescue Service (or if there was no such response to state so).

Thank you,
John Brace

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...

Yours faithfully,

ScarletPimpernel