Can the executive of a local authority make an FOI request to itself?
The Brighouse Echo reveals that Stephen Baines (no relation, of course), the Leader of Calderdale Council, resorted to submitting a Freedom of Information (FOI) request in exasperation, after apparently failing to get answers from officers at the Council
I asked officers on November 10 if there was there was any truth in these allegations [about officers ignoring warnings about the legality of a parking scheme], and I hadn’t received a reply, and last Friday I’d had enough – I finally lost it and put in a Freedom of Information request. It’s highly probable that I’m the first council leader to have done this, but I was just getting so frustrated.
But did he need to make an FOI request? In fact, could he even make an FOI request?
I would say that it is strongly arguable that in a council operating executive arrangements – as Calderdale does – under part 9C(3) of the Local Government Act 2000 (LGA 2000), whereby a Leader with a Leader-appointed Cabinet constitute the executive, the executive are deemed generally to be in control of information relating to the council’s functions. So in general terms, the Leader and Cabinet are “the Council”. Section 9D(3) of LGA 2000 provides that “any function of the local authority which is not specified in regulations…is to be the responsibility of an executive of the authority under executive arrangements” (the regulations in question are The Local Authorities (Functions and Responsibilities) (England) Regulations 2000 (as amended). Put another way, the executive are the ones who should take any decision on access to documents, rather than officers (other than officers who have had that decision delegated to them). The exceptions to this general principle would be where the documents relate to functions which are not the responsibility of the executive. Effectively, the executive will be the possessors/controllers of all council information for which the executive has the functional responsibility.
I feel bolstered in this suggestion by Part 5 of The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012. This gives “Additional rights of [access of] members of the local authority and of members of overview and scrutiny committees” and sections 16 and 17 talk in terms of the right of a member, or a member of an overview and scrutiny committee, to inspect certain documents which are “in the possession or under the control of the executive of a local authority”. No interpretative guide is given to what “in the possession or under the control of the executive of a local authority” means, but it is clear that there must be a category of documents which are “in the possession or under the control of the executive of a local authority”. That being the case, one might ask “which documents are not ‘in the possession or under the control of the executive of a local authority’?” To which I am tempted to answer “those which do not relate to the functions for which the executive has responsibility”.
So, if it is, for instance, a function of a local authority to provide library services (section 7 of the Public Libraries and Museums Act 1964). This function is the responsibility of the executive (because regulations do not specify otherwise). Delivery of the function will normally be by delegation to officers, but I cannot see how those officers, or others, could then restrict a member of the executive from seeing a document relating to the exercise of executive functions. And if, as I understand is the case, civil enforcement of parking contraventions is also an executive functions (surely delegated to officers) one wonders also if officers can restrict a Leader from seeing a document relating to the exercise of that specific function.
So, my argument goes, a leader of a council cannot make an FOI request to the council for information about the exercise of an executive functions, because in that regard he is the council. Comments welcomed!
And n.b. I have not even begun to consider where a councillor’s, or a leader’s, common law right to know fits in to this…
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
informationrightsandwrongs 
The argument – in isolation – seems entirely logical. But how does/would it sit alongside the principle of applicant/purpose blind?
I’m not sure, but that’s a principle only implied from the statutory provisions, and one that can fall away in some other circs s14, s12).
Perhaps Mr Baines felt that he was asking in a private capacity, or wearing some other more political hat than the one he wears as Leader?
It’s a good point, but the facts seem to point to him acting as Leader.
Surely anybody can submit a freedom of information request. I have done FoIs with a councillor (albeit not the leader) whom was frustrated at the lack of information being provided by the clerk. He was castigated by other councillors for doing so, for “getting round the system”, but the ICO decision notice agreed he had as much right as any other citizen.
Perhaps though, if he effectively is the public authority, he also must answer his own FoI request – promptly and in any case within 20 working days 🙂
I’d argue that this discussion skirts the three key issues at the heart of his action though.
1) by utilising the council’s inbuilt procedures for answering FoI requests, he may be getting the info he wants and wouldn’t otherwise get
2) in a Council eequivalent of Sir Humphrey, his own officials are preventing him from obtaining the information he needs to do the job
3) by telling everybody he is reduced to such tactics, he’s raising a (possibly legitimate, I don’t know) public concern about leadership and transparency in the Council.
I always worry about FoI requests wherein the making of the request itself is designed by the requester to cause some form of action, though I have made FoI requests myself to get public bodies to look closely at some situations. This appears to be the intention here, and I think the real debate is if this tactic is legitimate or not, rather than if the requests actually comprise legitimate requests in and of themselves.
Thanks Doug and I don’t disagree with most of what you say. I guess I was really considering how the governance and access to information arrangements in local government are really quite complex, and can give rise to anomalies.