Can our Clerk refuse FOI request about dispensation allowing member to vote on issues where he has an interest

Question

Two of our councillors are directors of a CIC that want to set up and run a village shop. The concept has split our village and most fear that it will be a waste of public funds. In order for debate regarding the shop to be carried our clerk has been persuaded or decided to give a dispensation to the councillors who are also directors of the CIC to allow them to vote on CIC issues. These include a loan, two grants a lease granted on very favourable terms ect.

We are a small PC and only have 7 members, the Chair backs the shop and anyone who opposes is firmly shut down by the Chair. Whatever they want they have got , all legally voted through as resolutions.

I know of one villager who has made a FOI request using the statement made by the Clerk at our AGM that stated that advice was sought from the Monitoring Officer and KALC before the dispensations were granted. He asked for all documentation relating to the granting of the dispensation.

The Clerk has refused the FOI request under section 40 (Personal information).

I do not see how this can be personal information, Councillors are public figures and CIC director details are publicly available. I think our Clerk is trying to hide something but the question is is she correct in refusing the FOI request and if so what can be done about it?

Answer 1

If it is advice from the monitoring officer, it can usually be classed as legal advice, (the monitoring officer is usually the district council's in house solicitor), so exempt from FOI in many circumstances.

As it is the council voting to dispense with a rule rather than councillors applying for it in their own right, correspondence would not be exempt on the basis of personal details.
Legal advice is exempt, however you were not given a section 42 exemption (legal advice) as a reason for declining, you can appeal their decision as they have misinterrepted the use of personal data in this case.

However, the dispensation would normally be given where the council could not effectively give consideration to a matter or would not be quorate without them being present. This is the most likely reason and is detailed fully in Arnold Baker (Parish Council Bible).

Answer 2

Section 40 of the FOI  act says Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.. So if you were asking for the medical history of a Councillor or his/her National Insurance number, those would clearly be exempt.  However documentation relating to a Council decision is a different case. Since the name of the Councillor is already personal information placed in the public domain, what additional further personal information might be revealed in what are essentially records of decision taken or resolutions at Council meetings?    As I can think of very few if any, I would advise asking for an internal review and if it is refused or the Clerk's decision is upheld,  making a complaint to the Information Commissioners office.  

Answer 3

I notice that you said the Clerk decided to give a dispensation. The Clerk has no powers to do this. The dispensation must be debated and approved, in public, by the body to which it applies, i.e. full council, committee, sub-committee etc and the reasons for the dispensation must be recorded in the minutes. As somebodyelse has stated, the normal reason for doing this is to prevent a meeting from becoming inquorate on a particular matter. This is increasingly common in small parishes for agenda items relating to village halls, where the same few people might serve as parish councillors and village hall trustees. Inquoracy appears not to be the issue in your case.

A CIC is a commercial company and, as such, may pay its directors a salary and/or a share of profits. This is the main reason a CIC cannot be granted charitable status or any of the tax benefits offered to charitable organisations. Unless the governing document of your CIC specifically excludes this provision, I believe the directors should declare a pecuniary interest and withdraw from the meeting whilst the CIC is under discussion.

On a wider issue, as someone who used to cycle through your village, I think it would be a challenge to establish a viable village shop business there, due to the size, geography and the absence of passing trade and, as the village appears to be split over the issue, I fear it is doomed to fail. I have recently been involved in a similar project in a slightly larger and more tightly defined but equally isolated village. Sadly, it was not sustainable.