No access to the signed minutes

Question

I need access to the signed minutes of a committee of our council, but I'm being refused by the Clerk because the minutes contain "confidential" information (the meeting was in part held without the public present) and I'm not on the committee.

I know withholding this information is illegal under s.228 of the 1972 Local Government Act (up to £200 fine on conviction) and in NALC's "Legal Topic Note 05 - Parish and Community Council Meetings", it specifically says "...including the minutes of decisions in proceedings held whilst the public were excluded..." This obviously makes sense; if it wasn't the case, in an election year where a whole council has been replaced, how would anyone be able to see the decisions made the previous month?

The problem I have is that the copy I have of the Legal Topic Note 05 publication is dated 2016 and the Clerk is refusing to even entertain the idea it could still be valid (yes, I pointed out the 1972 Local Government Act still exists and that's waaaay older). I know there is a 2021 update, but my local council association takes a while to reply. Does anyone here have a copy they can forward on to me?

Answer 1

Not sure why you haven't got access to the NALC website, we all do in our council.

Often one can find the LTN's just by an internet search, but as I am sure you have found out most are out of date (2018 version)

The LTN you want is now LTN 5E | PARISH COUNCIL MEETINGS [ENGLAND] dated Nov 2021.

Extract

70.Under s.228 of the 1972 Act, the signed minutes of the meetings of a local council (including the minutes of decisions in proceedings held whilst the public were excluded) must be available for inspection by local government electors for the parish at all reasonable hours. Electors are entitled to make their own copies of, or take extracts from, the minutes. The council is not obliged to provide copies of the minutes or copying facilities; it may do so (preferably on payment) and should normally do so if it has the facilities. Refusal to permit or obstruction of, inspection or the making of copies under s.228, is an offence. Strictly speaking, councils should ensure that those wishing to see (and/or take copies of) minutes are electors in the parish.

71. The Freedom of Information Act 2000 (‘the 2000 Act’) requires a local council (i) to routinely make certain information such as the minutes of meetings accessible to the public via its publication scheme and (ii) to respond to requests for information held by it. In respect of (i) most local councils have adopted the model publication scheme that the Information Commissioner produced for all local authorities. NALC has issued legal briefings which provide information about model publication schemes. A council’s publication scheme must confirm how information such as the minutes of meetings can be accessed by the public. If a council has a website, it is reasonable for the minutes to available online free of charge. If a council does not have a website or if a person wants to access the minutes by another means, the council must facilitate this.

72. Some councils include the draft minutes of meetings in their publication schemes, which are replaced by the approved minutes when these are available. Care should be taken to clearly mark draft minutes as “draft”. Pages 166 – 167 of ‘Local Councils Explained’ provide further guidance. Councils in England with a turnover not exceeding £25,000 should put their draft minutes on a website no later than one month after the meeting. See also paragraph 65 of this Note.

73. A person’s right of access to information held by a local council is subject to many statutory exemptions. Councils should read Legal Topic Note 37 (Freedom of Information Act 2000) for more information.

Comments

Brilliant, thank you so much Caroline! Just one more question if I may? There is another paragraph (77 in the 2016 version and 80 in the 2018 version) which states that "A member of the Council who is not appointed to a committee may attend a committee meeting as a member of the public..." Could you confirm that still exists?

Over the past month, I've been told I can't ask a question in the committee meeting because the district council says I'm a councillor, not a member of the public. What I suspect the true answer is, is that I should have other ways of asking the committee questions directly or be able to ask to speak at a meeting in a dedicated time slot, so why waste the public speaking time with councillor questions? That would be reasonable - but only one member of the public ever turns up, and they occasionally ask a question (answered with "we'll get back to you on email") leaving a good 9 minutes left of public questions. Again, this makes sense that I should be allowed to ask questions, because I could have a vital point to be considered about an agenda item that is to be transacted.

Thanks in advance!

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It's now para 75:-)

75. A member of the Council who is not appointed to a committee may attend
a committee meeting as a member of the public. They would have no right
to participate in the meeting unless a member of the public also has the
same right and as explained in Legal Topic Note 1 (Councils' powers to
discharge their functions).

As to speaking in the public speaking slot - this has been used on several occasions in our council. On one occasion when I was excluded from the meeting, as I supposedly had a prejudicial interest in the subject, I was allowed, and it was confirmed by the clerk, that I could speak in the public forum when the same subject came up at the next meeting. Ironically, if I had been allowed to speak in the initial discussion I could have saved the council several thousand pounds of unnecessary expenditure.

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Absolute legend, thank you!
I've only been an elected councillor for a few months, so trying to combat all the wrong-doing is hard. Obviously someone who has been doing the role for 10+ years is not going to take kindly to the young whippersnapper coming in and mixing things up. I wouldn't mind, but it really doesn't take THAT long to read The Good Councillor Guides and it's just a constant battle over the most stupid of things a lot of the time, although this issue is particularly poignant because, like in your case, thousands could have been saved if things were done properly.

Thanks again!

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You have mail!

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Oh my! The whole crown jewels! I'm very, very grateful!

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You seem to be taking this seriously and I applaud you - it can be a tough old road sometimes. As well as The Good Councillor Guide can I suggest you become intimate with your Standing Orders and Financial regs. We have a councillor who seems to be able to recall every word of the said docs and can often stop other councillors in their tracks when they transgress. Lovely to watch!

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Funny you should say that - our Standing Orders were woefully out of date and not based on the model produced by NALC at all (it was a 5 page document). The first thing I did was set about changing them, getting them published in July. I can't recall them all exactly, but I know if anything mentioned has a rule about them. The Financial Regs would have been next on the agenda, if it hadn't been for this current situation taking up all my time!

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Loving it!

Yes a Cllr may attend a committee in the same way as a member of the public may.
That’s what it says.
It DOESN’T say you HAVE to attend as a member of the public.
Of course a Cllr has all the same rights (and responsibility) of a member of the public, but they also have ADDITIONAL rights (and responsibilities) as a Cllr.
You can’t be a Cllr when it suits and not when it doesn’t. If it walks, talks, dresses like a Cllr at council premises during council business - it’s a Cllr!

If it’s a Cllr it isn’t a member of the public.
If it isn’t a member of public it isn’t excluded when the public are...

What fun );0)

Answer 2

I don't think you need a copy of any LTNs.  You could simply write to your clerk and request a copy of the minutes.  It would probably be worth (although its not absolutely necessary) saying that it is a FOI request.  You could also ask (again, not absolutely necessary) that, in the case of a refusal, under what provision of the FOI you are denied access.

Comments

Thanks John. Unfortunately, without the LTN, our clerk is of the opinion I can only see the redacted minutes which she publishes on the website. Despite her obstruction, it's out of genuine ignorance, and I don't want to report her to the police to simply see that something doesn't exist which has been claimed does in the "secret" part of the minutes. To give some context, the chair (who recently resigned) signed a legal document citing a meeting of the committee agreed the council would spend several thousands of pounds to secure a tenant on a property owned by the council. Obviously the committee doesn't have that authority in it's terms of reference anyway, but the issue now is whether the lease was fraudulently signed (where we may stand a chance of it being nullified) or whether "just" a false statement was made.

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I'm certainly no expert on FOI matters but I do not think this is, or ever would be, a police matter.  My understanding of the process is a) make a FOI request, b) on a refusal, request a formal review of the decision to deny access, c) on a refusal after review, report it to the Information Commissioner.  It might also be worth perusing the Information Commissioner's Website and politely suggesting that your clerk also has a look.

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I think this has been one of the more positive and informative threads on here where there have several useful contributions.  One further thought - you said that your chairman (now resigned) had signed a legal document which committed the council to a course of action.  It may be worth noting that any the signing of any legal document requires a resolution of the council (a point which has already been made) AND is required to be signed by TWO members of the council.

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Thanks John, I think it has been a great thread! I'm so grateful to everyone who has chipped in (and continues to chip in) with their experience, thoughts, knowledge and help. I was not aware of the two members signing rule... I'll have to check that out! Any pointers?

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Pointers ... yes.  See paragraph 14(3) of the Local Government Act 1972.

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John>> Oh my goodness! Of course! I mean... it's OBVIOUS! You need two councillors to sign off on the cheques, so you'd obviously need two councillors (or the seal) to sign off on the legal document (in this case, a lease)! It was signed by the chair in the presence of a member of the committee who ISN'T a councillor!

Wow, thank you for your insight, I would have completely missed that!

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So, this now moves forward to an interesting second order question.
It may appear that an action has been taken which is ultra vires and which has resulted in a financial liability to the organisation.
Who pays the bill?

It’s a bit tricky in this situation since it ‘appears’ that the PC will need to undo something so billing the individual(s) may be tricky.
I currently have an interest in a situation where a Cllr engaged a third party service without the authority of the PC which resulted in an invoice to the PC.
It was possible to ‘undo’ some of the damage done by the renegade Cllr and arrange a significantly reduced invoice BUT had that not been the case, the creditor would have been invited to pursue the INDIVIDUAL for payment rather than the PC.
Now, in the OP scenario, it seems that an ultra vires action has resulted in organisational liability being incurred.
How is that going to be remedied?

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Also, forgot to mention - those that probably knew there was a - let’s call it an administrative error - who then sought to prevent a Cllr accessing the records to reveal the “administrative error” have VERY questionable ethics and morals.
Whilst it may (usually) be excusable to make a genuine mistake, to then cover it up and obstruct investigation / remedy is INEXCUSABLE!

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RoundAgainCoxn>> I don't know about the ultra vires stuff - I came across that yesterday, but I was left with the understanding that it was only "a thing" if the council acted beyond it's power, although that may only be because of the particular example I read. Certainly the individual acted beyond their power, so what your saying does make sense.

Answer 3

Confidential minutes are a thing that should not exist. Minutes have to be open for public inspection as per LGA 1972 but confidential information should not be disclosed under the DPA 2018. There's no way those laws can both be upheld at the same time. Thus minutes should never contain confidential information in the first piece. Since the  confidential minutes do exist, the question becomes one of whether the information is being properly withheld. Legal topic notes won't help. Suggest the clerk/council review the practice of keeping confidential minutes.

Comments

Thanks Cassandra, totally agree with everything you have said. I should clarify, they don't really contain "confidential information" as you and I understand it, but the clerk considers the decisions taken in a private session as "confidential" and as such, can't be shown to non-committee members. A legal document has been signed claiming a decision was taken at one of these committee meetings to compel the full council to spend money. I know that 1) the committee doesn't have the authority to do this in it's terms of reference, 2) there was no agenda item for this action and so couldn't have been discussed lawfully anyway and I want to complete the hattrick by showing that 3) no decision is in the signed minutes.

Answer 4

Several very good and comprehensive answers already.
Of course your ‘rights’ and the ‘responsibilities’ of the organisation are clearly defined - but that’s not to say you will achieve satisfaction in the immediate term anyway when faced with a determined, even if misguided, opposition.
There is another way (as always) );0)

Whilst it might not resolve the historic issue, it will demonstrate - to those that need it - the ineffectiveness of such obfuscation moving forwards and after all, it is improvement moving forward we should all aspire to, no?

Attend the next meeting of this (or any other committee) seeking to exclude the press and public.

When the press and public are invited to leave the room, and only if a resolution has been passed to so exclude them, simply remain
As a councillor you are neither press nor public and you are perfectly entitled to remain in the room.

It’s really good fun to see the stuffed shirts puff and bluster but then realise they are incapable of validating their bad old habits
If you then wanted to take it one step further - audio / video record the closed session too  that will really send blood pressures off the chart );0)

I suspect someone will pop up with the reasons why a Cllr cannot attend a committee meeting now and claim that closed session cannot be audio / video recorded - if you do, please do take the time to quote valid references rather than expect people to believe historic bad habits...

Comments

Hahaha! Thanks RoundAgainCoxn, love the way you think! It had crossed my mind to do this already, but the July meeting of the committee (where this rule was first introduced) didn't have a private session. I even took a dictaphone to record the stupidity that would have ensued, ensuring I captured me attempting to ask a question at the start and being refused "because I'm not a member of the public".
It actually got to the point where the Clerk decided we were ALWAYS councillors and never members of the public. I've even thought about declaring that I received a free curry sauce at the local chip shop as a result of this; I don't want anyone to think the owner was attempting to bribe or lobby me! Hahaha! To the best of my knowledge, I don't think the guy at the chippy even knows I'm a councillor; it was closing time so they were just getting rid of it).

The chair (now resigned) has put the council in an awful situation, but half the councillors are refusing to recognise this and still support her and trying to cover up her mistakes.

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Its not that you are prevented from recording the meeting, but it is illegal to distribute that recording to anyone outside of the authorised attendees... Openness of Local Government Bodies Regulations 2014, Part 2.

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Thanks MrsAbster. I'm aware I can record meetings under law and I do so because the minutes aren't produced until a month later, so I use them as an aide memoir if required and then delete them. I've always assumed I couldn't record a private session, but looking at the law quoted, it would appear I can so long as it's not published/replayed in any way that can be heard by anyone not present at the time of recording. Is that your understanding too? Many thanks for the pointer!

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Hmmm, this is where I disagree with some of the other posts as it is my belief that a councillor can attend other council meetings, but their status is that of a member of the public if they are not appointed to that committee.  It certainly states that in our standing orders.  Therefore, if the meeting was closed to the public and the committee didn't set aside standing orders and resolve to allow other non-committee councillors to remain, then you would have to leave and therefore could not record the closed session...  If it was resolved for you to remain, then you could record the session for distribution only to those attending the closed session.

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Oh no, I think that's been misunderstood. In the committee to which I'm not a member, I think everyone here agrees I'm a member of the public and would have to leave and can't record any more. The comments in this thread were made because the Chair decided that myself and another Councillor weren't members of the public to stop us asking a question in the public speaking section of the meeting. In the thread, we were just pointing out the flaw in her logic because if, by her own decree, we weren't members of the public, we wouldn't have to leave for any "closed session".
In terms of recording a closed session just above, I was referring to making a recording of a closed session of a meeting that I was entitled to attend (i.e. a full council meeting). The law you pointed to suggests that I can record a closed session of a meeting I'm entitled to be a part of so long as I don't share that info with anyone not in that meeting (e.g. a member of the public, a district councillor, etc). Sorry, I should have made that clearer.

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I recently audio / video recorded a closed session. It caused such outrage that some even refused to speak - that was an unforeseen advantage!

It is in no way inappropriate to record a closed session - in fact, there would be no way to enforce it what with smart phones etc - quite rightly, it would be the external distribution that would be inappropriate.
So, no distribution, no breach of regulation / code.
Time for old habits to be reassessed....

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For Barry: your chair can’t have it both ways.
If you’re NOT a member of public during the public speaking session, you are NOT a member of public when the meeting is closed to the public.
Personally - I think anyone who has any question should be embraced at any open meeting and that any Cllr can attend any committee because they are NOT there as public.

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RoundAgainCoxn - Absolutely. Honestly, I could write a book on all the whole saga - what I've put out in this thread is only the tip of the iceberg!!