Can Councillor make audio recording during confidential session?

Question

(a) Can a Councillor make an audio recording during a confidential session (ie, when the public and press are excluded) if the recording is for the Councillor's own use or other internal purposes?
(b) Where some Councillors routinely during meetings, including confidential sessions, typically use their own personal laptops or phones to store and access confidential meeting papers and information, is it right for a Clerk or Council to insist that confidential info on personal devices is permissible but audio recordings not so?
(c) When a Council deems Officers as being allowed to record the confidential proceedings then why would this not extend similarly to any Councillor attending as part of the sitting Council (after all, the Councillor is not a Member of the Public)?  If a Member records a confidential segment of a meeting, could the Code of Conduct be breached in respect of expectation of needing to "comply with all legal obligations" that apply as a Member?

Answer 1

The press and public may only be excluded when publicity would be prejudicial to the public interest. With this in mind, the number of copies of information, whether paper or digital, should be kept to a minimum. I often invite members to return their papers to me at the end of a closed session if they have no further need for them. An audio recording is of no use during the meeting and I would be concerned about the justification for taking it away for subsequent use. It is common practice for a Clerk to record the meeting to assist with the preparation of accurate minutes, but the purpose, use and disposal of such recordings are clearly defined.

Members of the Council may record the public sections of meetings and have the same freedom as members of the public to make them available to the wider public, on YouTube for example. This is simply open and transparent government, but disclosing confidential information is a breach of the Code of Conduct.

Answer 2

It’s an interesting point that I’ve thought of myself in the past as it’s only in the last few years that technology has made recording and storage of recordings so much easier
As a baseline I think the Council itself should always record and store recordings of all meetings confidential or not
If the confidential session could fall foul of GDPR then the recording should never be released but to me it’s always best to have recordings for legal and audit purposes

Remember  are two types of confidential meetings those that the minutes will be distributed at a later date and those where the minutes will never be released
In the past couple of years I’ve seen several occasions where recordings have prevented problems arising including once where allegations against myself were untrue and once where my comments were totally misrepresented in minutes

On the opposite side of the coin was a confidential session about myself which basically turned into a tirade against me by the Chair and one other Councillor which I couldn’t substantiate as I didn’t record it

I think the question really should be what is to prevent a Council revising it’s Standing Orders to allow the recording of confidential meetings and when can the recordings be released ?

Before anyone jumps on me just bear in mind if someone is good at shorthand there’s nothing to prevent them making a full word by word transcript as long as they don’t distribute it before it’s allowable to do so

Comments

Just making a couple of points Jules that the only legally recognised record of any local authority meeting is the agreed minutes.   There is an opportunity when the minutes are put forward for adoption at the next meeting to dispute these but otherwise an agreed set of minutes will always be taken as evidence of proceedings at that meeting in law (and audit).  Secondly, there are no such things (or shouldn't be) as confidential minutes of a town or parish council, disclosable or otherwise.  Minutes are records of decisions taken and those decisions must be available to the public although I recognise that something can be minuted rather vaguely.  A minute that reads "the council agreed to the course of action as recommended by the confidential report" isn't uncommon but it's still a valid minute which must be available to the public.

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Firstly if push came to shove in a legal dispute I think a recording of a meeting would be considered sufficient evidence that the minutes are not correct even if they’ve been agreed

Secondly my understanding is all minutes of “ confidential sessions “ should be released including supporting papers as soon as possible unless GDPR is an issue

In my experience many sessions are voted to be confidential when they are not.  I know of  one meeting where the Chair openly admitted that the public and press had been excluded because the issue was embarrassing to the Council
So would it be considered a breach of the Code of Conduct if a Councillor recorded a confidential session if the Council had improperly excluded the public and press ?

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With respect jules, you would struggle to find a legal precedent to say that approved minutes are disputed because a recording suggests otherwise.  And as I have said, there is no provision within local government regulations where minutes can ever be confidential.  Minutes are records of decisions and decisions cannot be confidential albeit they are often written a little vaguely.
You may be right about the use of confidential sessions too widely but what should be happening is that there should be vote to exclude the public and press for any section of a meeting.  It is not a decision of the chair or the clerk but the whole council.  It is usual to use it for reasons of personal confidentiality (for a staffing matter for example) or commercial sensitivity (when discussing quotes, contractual negotiations and the like).

Answer 3

The answer seems to be maybe according to the  Openness of Local Government Bodies Regulations 2014. It suggests they are empowered to choose via "the body may also prevent" as shown below.  (If it said "will" or "shall" that would not be seen as an option, but it doesn't).

Article (3A) says that "Where the public are excluded from a meeting of a relevant local government body under subsection (2), the body may also prevent any person from reporting on the meeting using methods—
(a)which can be used without that person’s presence at the meeting, and
(b)which enable persons not present at the meeting to see or hear the proceedings at the meeting as it takes place or later.”

"May also prevent" is the key here.  The wording suggests it is an option.

Comments

At a recent meeting of our parish council which excluded the public, councillors were asked to surrender their mobile phones, under the pretext that information had been leaked from a previous meeting (although no evidence was given to support this).  The chair of the meeting ceremoniously locked the phones in a box, returning them to councillors after the meeting had closed.  This felt wrong at the time, and having read Graeme_r's comments it seems it was inappropriate.

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Yea or nay? Surely this matter must revolve around the integrity of the councillor who wishes to record not whether they are "allowed". Councillors are bound by their code of conduct which includes the Nolan principles. Should a councillor take a recording of a confidential matter and make it public then they must be held accountable via the Monitoring Officer. But of course it would have to be shown by the council that the meeting was indeed qualified to be specified "confidential" and exclude the rights of the public and councillors to report. and that the councillor had indeed breached the code of conduct.

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Thank you for your comments Mentorman.  I believe the council would indeed struggle to show that much of the meeting was qualified to be specified "confidential".  The chair is so furtive and overbearing that it is tainting the PC's reputation, and the temporary clerk is keeping their head below the parapet.

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The chair is there to run the meeting and asking attendees to surrender their personal possesions is arguably outside what is needed to run a meeting. It could also be argued as a breach of the code of re  being disrespectful, implying  the attendees are deemed untrustworthy
General Conduct:   1. Respect - As a councillor:
1.1 I treat other councillors and members of the public with respect.
What if one of the Cllrs had to be contactable quickly in an emrgency?  They might hear their phone ring from a locked box but wouldn't know what the call was about.

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If I’d been a Councillor I’d have asked where in Standing Orders the confiscation of mobile phones is allowed

Let’s be honest Parish Councils are not part of the secret services and there can only be very few occasions where something is so secret it should never ever be revealed
In my experience Councillor’s go along with excluding the public and press because it increases their self importance that they are privy to matters that ordinarily mortals aren’t

I know a Council where some Councillors wanted to call in the Police and Solicitors because a non confidential email included in the agenda pack was circulated