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FOI Guidance for elected members

What are your responsibilities under the Freedom of Information Act, Data Protection Act and Environmental Information Regulations?

In your role as an elected member of the County Council you must be aware that information you produce or receive could be subject to disclosure under the Freedom of Information Act (FoIA).

Does requested information always have to be disclosed?

The Act recognises that it is not always in the public interest to disclose information and therefore contains a number of exemptions. The exemptions are designed to protect various interests, such as the right to privacy of individuals, the ability of authorities to conduct investigations and to protect commercial interests. However, most of the exemptions are subject to an additional "public interest" test, which would mean that information protected by an exemption would be released, if the public interest favoured disclosure. Whenever information is withheld, the applicant can ask for an internal review or put in a formal complaint to the council to overturn the decision. If the applicant remains dissatisfied with the outcome s/he can appeal to the Information Commissioner, who can overturn decisions to withhold information.

Does the FoIA only apply to public authorities?

The FoIA only applies to public authorities, such as County, District and Parish Councils. However, it covers all information held by the council that relates to the business of the council, regardless of whether it produced the information. Therefore, information provided by a private company during the tendering process is subject to FoIA, as long as the council holds it. Likewise, FoIA does not apply to elected members in their own right, but where information produced by a member is held by the council and relates to council business, the information is subject to disclosure under the FoIA.

Therefore you, as an elected member, must retain information to support any requests received by council staff and be able to provide it in a prompt manner to meet statutory deadlines.

Does FoIA apply to me?

Elected members in their own right are not subject to the FoIA, as it only applies to public authorities, but there are circumstances, where information produced, received or held by elected members could be liable to disclosure. If the information held by the County Council relates to the business of the County Council it is subject to disclosure. Therefore, if you were to write to or email an officer of the council about an issue that related to the business of the council, then the information would be covered by FoIA.

What about political information?

Where information produced is of a political nature, such as election strategy, this does not relate to the business of GCC and the provisions of the Act would not apply to such correspondence. However, there are potential 'grey' areas. For example members might consider information relating to their voting intention on the budget to be political, but it could be argued that the information would relate to the business of the council and be subject to disclosure.

The following are examples to illustrate the above circumstances:

  • Information emailed by an elected member about the education review, to an education officer, would be subject to FOI.
  • Information sent from an elected member to another elected member, about their chances in any forthcoming local elections would not be subject to FOI.
  • Information sent from one elected member to another would be subject to FOI if it related to council business.

You must be aware that you are responsible for the proper management and security of the information you hold, including being able to retrieve information that relates to council business.

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