Image: Birmingham City Council House.
In our local government system, local authorities are served by two separate yet equally important groups: the elected councillors who make the decisions and the officials who implement them. Or so the story goes, writes Max Pakinga-Barber, Senior Solicitor at Franks Ogilvie.
In the 21st century local government is significantly more complicated than it used to be. This increase in complexity has seen an expansion in the role of unelected experts within councils. In some unfortunate recent incidents, certain officials have taken it on themselves to expand their role further, seeking to control the flow of information to elected councillors.
Often, this gatekeeping role is justified by seemingly sensible considerations like protecting confidentiality.
This gatekeeping role is difficult to square with the governance model in the Local Government Act 2002 (LGA). The LGA model charges elected councillors (acting collectively) with policy development. Officials are there to advise and implement, not to determine the policy narrative by controlling access to information.
To date, the LGA has provided no guidance on the matter. However, this may be about to change. The Local Government (System Improvements) Amendment Bill, introduced to Parliament back in July, creates a right for councillors to access information held by their council where it is reasonably necessary to enable them to perform their public duties.
The bill reflects the approach of the UK courts to councillor information rights, which have recognised a common law information access right for over a century. The UK approach provides useful guidance on how the bill might be interpreted.
The leading case is the House of Lords decision City of Birmingham District Council v O [1983] 1 All ER 498 (HL).
The Birmingham case
The case involved a request for highly sensitive information concerning an adoption provided to the council’s social services committee. The requestor was not part of this committee. She sought the information in her capacity as a member of the full council which had oversight over the social services committee.
The adoptive parents filed a judicial review seeking to deny the councillor access to the information.
The Court of Appeal granted an injunction, holding that the councillor’s interest in accessing the information was outweighed by the applicants’ interest in keeping it confidential.
The House of Lords unanimously and emphatically overturned the decision. The cases established that councillors had a right of access where they had a ‘need to know’ – namely, where the information was needed to keep themselves informed and perform their public duties.
This need to know would be presumed for information pertaining to a committee of which a councillor was a member. In other cases, the councillor would need to establish that they sought the information in the course of their official duties, and not out of curiosity or a desire to interfere in matters they had no role in.
The council’s conclusion that the councillor had a need to know did not meet the judicial review standard of ‘irrationality’. As a result, the councillor was entitled to access the documents, notwithstanding their sensitivity.
Guidance for the bill There are strong similarities between the Birmingham need to know approach and the ‘reasonably necessary’ test under the bill. Birmingham is likely to be influential in interpreting the new information right.
When is information ‘reasonably necessary’?
The need to know test established an objective approach to information requests based on the councillor’s purpose in accessing the document. If the information is sought for a purpose relating to official duties, it should be granted. If sought for an ulterior purpose, there is no right.
Context will be important in determining whether a need to know exists.
In some cases, councillors should be presumptively entitled to it. Birmingham recognised that committee members had a presumptive right to committee information. In the New Zealand context, a similar generous approach could extend to cases where the information relates to non-delegable council functions like adopting an LTP or making a bylaw.
A more rigorous screening of requests may be justified in cases where the information is sensitive or is information of a type that is outside the norm for councillor involvement (for example, information on a council employment matter). However, this approach does not give officials licence to withhold information for which there is a genuine need, or to determine that the requestor can ‘make do’ with a summary of the information.
Withholding confidential information
Birmingham strongly rejected any allowance for confidentiality interests to be weighed against information access rights. Sensitive information might justify a more rigorous assessment of whether a need to know existed. However, if such a need was established, the information could not be withheld to protect confidentiality.
Subsequent UK High Court decisions have purported to backtrack from this strong approach. They were arguably wrong to have done do, both legally (as they were bound by the Birmingham decision) and in principle.
The Birmingham approach is more consistent with the scheme of the LGA, where the council is the ultimate decision-maker. Information is provided to officials or committees acting under delegated authority. Expecting such information to be withheld from the members making up a council’s governing body is effectively an expectation that the council will withhold information from itself.
Birmingham also provides sufficient protection for confidentiality. The need to know test filters out requests made for improper reasons. It does not restrict officials and councillors from agreeing to reasonable safeguards (including redactions of out of scope information). And it does not provide a licence for councillors to leak confidential documents. Those that do so risk personal civil liability to third parties for breach of confidence.
Withholding personal information
The Privacy Act 2020 creates a clear statutory exception to the right to know. Information Privacy Principle 10 restricts using information beyond its original purpose, and extends to disclosures within organisations. However, redacting personal information typically avoids this issue, so there is no justification for blanket non-disclosure.
Practical guidance in the meantime
While the bill is yet to be enacted, the Birmingham case provides practical guidance for officials and councillors to work with in the interim.
Councillors seeking information access should provide detail upfront about why they need the information in connection with their official duties, and signal a willingness to accept information subject to reasonable safeguards.
Officials should adopt a similarly constructive approach, working with councillors to address confidentiality and privacy concerns without resorting to blanket withholding of documents.