Skip to main content Skip to accessibility
  Non-Javascript users can confirm they have successfully signed out of MyAccount by clicking here

Exclusion of press and public

​​​​Guidance about Schedule 12 A - Local Government Act 1972

Introduction​

From 1 March 2006 Schedule 12A of the Local Government Act 1972 "the 1972 Act" was amended. This was to take account of the impact of the Freedom of Information Act 2000 (FOIA). There are 10 categories of information which can be exempt, 3 of which relate specifically to Standards Committee or Sub-Committee meetings. All of them require consideration of the public interest before deciding whether to withhold the information. Details of the categories are attached as an Appendix to this guidance.

What is the starting point?

The initial position should always be in favour of disclosure of as much information as possible about the decisions the council takes, and only in limited circumstances should information be withheld, where there is a justification, in law, for doing so.

How should we consider the exemptions?

Start from the position that you will disclose everything. If there is information that you think should be withheld, check if any 1 or more of the 10 categories apply. If they do apply, consider the public interest test. 

What is the public interest test?

The public interest test in Section 2 of the FOIA provides that the council must release the information unless, "in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information".

This requires the council to make a judgement about the public interest. Where the balance between disclosure and withholding the information is seen as equal, the information must be released. 

What is the public interest?

There is no legal definition of what the public interest is but Meredith Cook in her 2003 Study "Balancing the Public Interest: Applying the public interest test to exemptions in the UK Freedom of Information Act 2000" identifies the following as some of the relevant considerations in favour of disclosure:

  • The public interest in disclosure is particularly strong where the information in question would assist public understanding of an issue that is subject to current national debate.
  • The issue has generated public or parliamentary debate.
  • Proper debate cannot take place without wide availability of all the relevant information.
  • The issue affects a wide range of individuals or companies.
  • The public interest in a local interest group having sufficient information to represent effectively local interests on an issue.
  • Facts and analysis behind major policy decisions.
  • Knowing reasons for decisions.
  • Accountability for proceeds of sale of assets in public ownership.
  • Openness and accountability for tender processes and prices.
  • Public interest in public bodies obtaining value for money.
  • Public health.
  • Contingency plans in an emergency.
  • Damage to the environment.

In the introduction to the FOIA the Information Commissioner lists the following public interest factors that would encourage the disclosure of information:

  • Furthering the understanding of and participation in the public debate of issues of the day.
  • Promoting accountability and transparency by public authorities for decisions taken by them.​
  • Promoting accountability  and transparency in the spending of public money.
  • Allowing individuals to understand decisions made by public authorities affecting their lives and, in some cases, assisting individuals in challenging those decisions.
  • Bringing to light information affecting public safety.
The guidance from the Information Commissioner's Officer is in the Freedom of Information Act Awareness Guidance No 3 The Public Interest Test, which is available from the Information Commissioners Office 

Who decides whether something is exempt or not?

The Cabinet, committee or person (where a delegated officer decision is involved) considering the report will actually decide whether information contained in the report is exempt or not. However, bearing in mind the legal requirements for agendas and papers to be published in advance, the report writer initially needs to consider these issues and give the reasoning for their view as to whether information within a report should be exempt or not. A practice of applying "Exempt" status to a report without reasons being set out is no longer acceptable. Democratic Services will be the first point of contact for the report writer regarding a report or information within a report which he/she considers should be exempt. Legal advice on the application and interpretation of the new Schedule 12A provisions will be provided by an Officer from Legal Services. In the event of any dispute, ultimately the Service Director – Corporate Services (Monitoring Officer) will make a final decision as to whether or not some or all of a report should be treated as exempt, before the relevant agendas and papers are published. 

What are the process considerations?

You need to build in a step in the writing of reports that involves consideration of whether there is exempt information contained within a report and whether the public interest in disclosure outweighs the use of an exemption. Whether a report is considered to contain exempt information is a matter initially for the report writer.

How, in practice, should reports be written to take account of this new approach?

Where there is considered to be exempt information in a report, decide if it should be placed in a schedule separate to the main body of the report. All that does is physically separate the potentially exempt information into an easily identifiable document. In the event of a FOIA request being made, the main body of the report can then be disclosed with the exempt schedule being withheld. This will not always be a practical option, particularly where the exempt information forms the majority of the information within the report or where its separation from the rest of a report makes the report meaningless or difficult to interpret or present. In such cases, there may be no alternative to making all of the report exempt. 

Appendix

Schedule 12A from the 1972 Act from 1 March 2006

Description of Exempt Information Qualification Notes
 Information is not exempt information if it relates to proposed development for which the local planning authority may grant itself planning permission pursuant to regulation 3 of the Town and County Planning General Regulations 1992.Applies to all categories of otherwise exempt information.
1. Information relating to any individualExempt 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.Names, addresses or telephone numbers can identify individuals.

Also consider the council's Data Protection Act responsibilities.

2. Information which is likely to reveal the identity of an individualExempt 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.

Names, addresses or telephone numbers can identify individuals.

Also consider the council's Data Protection Act responsibilities.

3. Information relating to the financial or business affairs of any particular person (including the authority holding that information). 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.

Information falling within paragraph 3 is not exempt information by virtue of that paragraph if it is required to be registered under:

(a) the Companies Act 1985

(b) the Friendly Societies Act 1974

(c) the Friendly Societies Act 1992

(d) the Industrial and Provident Societies Acts 1965 to 1978

(e) the Building Societies Act 1986

(f) the Charities Act 1993

The authority is a reference to the principal council, for example Rochdale, or, as the case may be, the committee or sub-committee in relation to whose proceedings or documents the question whether information is exempt or not falls to be determined.

Financial or business affairs includes contemplated, as well as past or current activities.

Registered in relation to information required to be registered under the Building Societies Act 1986, means recorded in the public file of any building society (within the meaning of that Act). 

4. Information relating to any consultations or negotiations, or contemplated consultations or negotiations, in connection with any labour relations matter arising between the authority or a Minister of the Crown and employees of, or office holders under, the authority.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.The authority is a reference to the principal council or, as the case may be, the committee or sub-committee in relation to whose proceedings or documents the question whether information is exempt or not falls to be determined.

Employee means a person employed under a contract of service.

Labour relations matter means:

(a) any of the matters specified in  paragraphs (a) to (g) of Section 218 (1) of the Trade Union and Labour Relations  (Consolidation) Act 1992 (matters which may be the subject of a trade dispute, within the meaning of that Act); or

(b) any dispute about a matter falling within paragraph (a) above.

(this applies to trade disputes relating to office holders as well as employees).

Office holder in relation to the authority, means the holder of any paid office appointments to which are or may be made or confirmed by the authority or by any joint board on which the authority is represented or by any person who holds any such office or is an employee of the authority.

5. Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.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.Privilege lies with the "client" which broadly is the council. 
6. Information which reveals that the authority proposes:

(a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or

(b) to make an order or direction under any enactment

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 informationThe authority is a reference to the principal council or, as the case may be, the committee or sub-committee in relation to whose proceedings or documents the question whether information is exempt or not falls to be determined.
7. Information relating to any action taken or to be taken in connection with the prevention, investigation or prosecution of crime.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. 
Description of exempt information relating to an Audit & Governance Committee meetings ONLY (in addition to paras 1-7 above) Qualification Notes
8. Information which is subject to any obligation of confidentiality.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 informationThis will not apply to all the papers before an Audit & Governance Committee and is likely to need careful consideration in the circumstances of a Local Investigation or Determination.
9. Information which re​lates in any way to matters concerning national security.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. 
10. The deliberations of an Audit & Governance Committee or of a Sub-Committee of an Audit & Governance Committee established under the provisions of Part 3 of the Local Government Act 2000 in reaching any finding on a matter referred under the provisions of Section 60(2) or (3), 64(2), 70(4) or (5) or 71(2) of that Act.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.This will apply in relation to Local Determinations whether the original report came from an Ethical Standards Officer or from a Local Investigator.

Contact

Committee Services
Number One Riverside
Smith Street
Rochdale OL16 1XU