Can the Clerk record the meeting?

Question

Is it legal and/or advisable for a clerk to record a meeting, to assist with the production of minutes?  At a recent meeting a locum clerk recorded the meeting without informing the councillors or the parishioners.  At best, this seems against the principles of open government and transparency.

Answer 1

Yes, perfectly legal (Openness of Local Government Bodies Regulations 2014), they can record the meeting in exactly the same way as any member of the public can, and notice doesn't have to be given.

I don't see how having an accurate record is less open, or less transparent?

Comments

Thank you, that is helpful.  My comments about transparency related to concerns expressed by parishioners who feel the failure to inform them they were being recorded in the open forum is against the principles in the Data Protection Act around the need for transparency, fairness and 'no surprises' about how their data (in this case their voice and any relevant comments made) is held or stored.  As it is not our usual practice to record meetings (and indeed we were unaware at the time that the meeting was being recorded) there is nothing in our privacy notice to cover this.

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There is perhaps a legitimate concern over how long the recording of members of the public would be kept for, but not councillors. But the overriding public duty for accuracy of minutes and decisions would trump this. I think agreeing that council recordings are deleted once the minutes of the meeting are agreed - as the minutes becomes the legal record would be a good compromise.

There is nothing however, to stop any member of the public / journalist recording the meeting (unless held in closed session) from recording it and keeping and making use the recording for whatever purpose they see fit and for any duration.

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Our legal eagle was asked the question of how long a recording should be kept and he was of the opinion that 6 months would be a minimum. He did quote some legislation, but I can recall what that was now. Worth asking for a legal opinion just to cover ones backside perhaps.

Answer 2

Recording is becoming increasingly common and, as has already been stated, is certainly legal.  There are, however, many complex issues that need to be addressed in relation to the purpose and status of the recordings, with different approaches being adopted by different councils.

At a simple level, the recording could become part of the official record, alongside the minutes (see Melbourn Parish Council).  More commonly, the recording is simply an aide memoire for the Clerk to assist in the creation of the minutes, after which it may be deleted, but this requires careful documentation to avoid falling foul of the Information Commissioner if an FOI request is received.  The ruling on Hemingbrough Parish Council (search for Hemingbrough FOI) covers the potential pitfalls and is worth studying.

As always, the key is strong policies and procedures.

Answer 3

The Clerk can make audio or video recordings of his/her council meetings under the Openness of Local Government Bodies Regulations 2014) There is no issue there and cllrs cannot instruct he Clerk otherwise.. If the recordings are retained after the agreed minutes are published it is still information held by the public body and potentially must be provided if an FOI request is submitted. The issue that could arise is whether or not the recordings can be made available for viewing via the council website.  That would have to be agreed as a policy or standing order.

Comments

I agree.  Once the recording is made, it becomes part of the official record.  There is no legal requirement to retain the recording, so once it has served its purpose (i.e. enabled the Clerk to draft the minutes), it can be destroyed.  However, the council should have an agreed policy for this and documentary evidence of the destruction is required.  A casual as-and-when approach is unwise.  From the ICO website:-
- If information is destroyed before a request is received, a public authority can say it does not hold it but should explain why the information was destroyed and advise the applicant of any other available information.
- A public authority should have disposal schedules for records in order to identify and describe those that can be routinely destroyed.
- If information is held when a request under FOIA is received, a public authority may lawfully be able to say that it does not hold it if it would normally be destroyed before the deadline for responding. However, the authority should, if possible, and as a matter of good practice, suspend any planned destruction and consider the request as usual.
- Destroying requested information outside of a public authority’s normal policies is unlawful and may be a criminal offence if done to prevent disclosure.
- As a matter of good practice, a public authority should keep all requested information for at least six months to allow for appeals to the Information Commissioner.