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Unlawful Exclusion Of The Public From  Council Meetings

What the law says

Under the Local Government Access to Information Act 1985 meetings of a local authority have to be open to the public unless they are excluded under one of the following two provisions:

They must be excluded if  the following information would otherwise be disclosed: (a) Information provided by the Government forbidding its disclosure or (b) information whose disclosure is forbidden by law or an order of court.

Also, a Local Authority may decide by passing a resolution  (see Part III A 50 A (4) of the Act) to exclude the public when exempt information would be disclosed.  Exempt information is defined in  The Local Government (Access to Information) (Variation) Order 2006 (No 88) Schedule 12A .

This schedule lists as exempt:  information about individuals, the financial or business affairs of an individual, labour negotiations and  legal professional privilege. In addition information which would reveal that the authority proposes to issue a legal notice, order or direction against anyone is also exempt as is information relating to criminal investigations.

However, information is only exempt if and so long, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. (Schedule 12A Part 2 10)

Where  a report prepared for consideration at a meeting is likely to be treated as exempt it is not open to inspection by the public and every copy of the report  has to be  marked ”Not for publication’ and the nature of the exempt information stated on it.

Although not required under the Act, the committee should also be be informed of the reasons why officers feel that the public interest in maintaining an exemption, and therefore excluding the public, outweighs the public interest in not doing so. This is required under Article 13.02  (page 66) of the Borough’s constitution which says   "All decisions of the Council are made in accordance with the following principles:  (g) making clear what options were considered and rejected in the making of a decision and giving the reasons for that."  

North Planning Meeting 9th Dec 2008

Please refer to the  Eyesores page for details of this case.

The public it would appear were unlawfully excluded from  part of this meeting.  No resolution was passed to exclude them.  If the public interest test was applied officers did not give their reasons to the Committee for deciding that  the public interest in maintaining the exemption outweighed the public interest in disclosing the information.

I wrote to Hugh Dunnachie on 25th March asking for an  explanation and raising  the issue of the legal validity of the decisions made at this and other meetings were the public may have been unlawfully excluded.

I received a reply on 9th April to which I responded saying he had not addressed the four points I had raised, for example he had not explained why the exclusion could have been lawful when no resolution had been passed.

Guidance Notes for Committee Members

To help prevent further unlawful exclusions Guidance Notes have been prepared and sent to all LBH Committee Chairman.