Can there be a confidential minute?

Question

In general, every council decision must be minuted.  Also, minutes must be available for inspection by members of the public - this is an explicit statutory right, not merely a general Freedom of Information right.  Is there any exception to this for sensitive matters?  Can a decision be made and recorded, but not be accessible to the public?

I know that a lot of councils do keep some confidential minutes and exclude the public when reviewing them.  But is there any statutory basis for rejecting a request by a citizen to see any or all minutes?

Answer 1

I'm now in a position to answer my own question with a reasonable degree of confidence.  The short answer is "no".

A council must, by statute, record its decisions in minutes.  There is no statutory basis for there being more than one set of minutes, and legal opinion is that having more than one set of minutes is not advisable.  In any case, it appears that the Local Government Act 1972 section 228 gives electors an absolute right to inspect signed minutes.  There is also a statutory requirement that minutes be signed promptly (normally at the same or the next meeting and certainly not deliberately delayed).

The Freedom of Information Act is not relevant, because the right to inspect minutes is a specific statutory right.  The Data Protection Act is also not relevant, because it does not override a specific obligation to provide information (as in section 228).  Allowing inspection of a minute cannot, therefore, be a breach of the DPA.

Clearly in delicate situations it is advisble to be circumspect about what is recorded in minutes.  At any time, only the decisions need to be recorded, and not the discussion or any ancillary papers (which may be subject to FoI but could be exempted).

So it seems that there is no lawful route to keeping a minute confidential beyond the period between its recording and its signing, which cannot be delayed for long.

The information above is based on the statutes, the general advice issued by the National Association of Local Councils and advice given by a solicitor specialising in local council law.

Comments

But many councils nevertheless do keep minutes of confidential sessions confidential, and will not release them. The practice has been normalized.  How has that state of affairs been allowed to flourish?

---

Their actions are unlawful. A citizen could apply to the courts to require access to minutes of meetings of a council or its committees. Obviously, the costs of court action mean that this rarely happens. It's a bad practice, all the same. What should be done is to record the decisions made with the bare minimum of detail, although not to the extent that the decision is unclear. Ancillary documents can be referred to, and they can be confidential. But there is no lawful way to hide that a decision has been taken. Trying to keep minutes confidential is just a sloppy get out.

---

I agree. But the practice is widely adopted and rarely challenged even by the local ALC. It is just one example of how incorrect practice can spread and become normalized. It shows the system of oversight is flawed/inadequate, and that no organisation seems to be lobbying for it to be improved, presumably because it is not seen as in their interest to do so. At least, that's how I see it.