Access to information

The Information Commissioner has issued technical guidance clarifying how Schedule 12A and section 100 of the Local Government Act 1972 (LGA) operate alongside the Data Protection Act 1998 (DPA) and the Freedom of Information Act 2000 (FOIA).

Broadly, Schedule 12A of the LGA covers publication of documents, including agendas, reports and minutes relating to council meetings. Prior to 2006, Schedule 12A listed personal data which should not be disclosed. Many local authorities found this confusing as it implied that if personal data was not on the list, it should be disclosed irrespective of what the DPA says.

In order to remove this confusion, in 2006, the list was removed from Schedule 12A leaving no indication as to what data should or should not be disclosed.

In the new technical guidance, the Information Commissioner has clarified that whenever requests for information are made under the FOIA and the DPA in relation to council meeting documents, an assessment should be carried out as to whether any requested information is personal data and whether it should be withheld in accordance with DPA obligations.

The DPA and FOIA also provide conflict for public sector bodies as employers. While the aim of FOIA is to increase openness in the public sector by disclosing information about decisions and activities of employees, it is recognised that employees have legitimate concerns over privacy and rights acquired under the DPA.

This leaves the public sector employee stuck between a rock and a hard place. The good news for the public sector is that we now have technical guidance which will go some way towards clarifying the position and giving the public sector practical advice on dealing with FOIA requests.