Cllr Paul Mercer is a member of Charnwood Borough Council. He is a member of its cabinet with responsibility for Strategic and Private Sector Housing.
One of the early discoveries I made on returning as a local councillor after an absence was that we no longer had so much access to council documents and there appeared to be a tendency to cite the Data Protection Act (DPA) as the reason.
The DPA is a solid piece of legislation which, properly used, protects the rights of an individual and as such should be applauded. The problem appears to be that on occasions its provisions are over interpreted and councillors are denied information that legitimately they should be allowed to see.
The DPA is overseen by the Information Commission’s Office (ICO) and its guidance is relatively straightforward. An elected member does not have a right to see personal information unless it relates to somebody in their ward, that they are representing that individual, and that information is necessary to respond to their complaint. This is called ‘implied consent’. The ICO further recognises that there “may be occasions” when it is necessary to get a signed consent of the individual but it stresses that this only relates to ‘sensitive’ personal data which it defines as race, political opinion, religious beliefs, trade union membership, health, sexual life, criminal activity or court proceedings. However, on every single occasion that I have requested personal information I have been asked to obtain written authorisation even though it may not have anything to do with these ‘sensitive’ issues.
On one occasion, a group of residents complained about a new council tenant whose boyfriend was a prolific shoplifter and regularly visited neighbours to sell them his latest acquisitions. Several other complaints were made including allegations about mistreating their young child, anti-social behaviour, and owning a potentially dangerous dog.
When I complained to the respective bodies (social services, ASB officers, police etc) I was, understandably, asked for his name. Neither of them were on the electoral register and I was told by officers that I could not be given their names because of the DPA. It was only through some lateral thinking by one of the neighbours, and a search on Google for people convicted of similar offences from the area where the couple originally came from, that it was possible to work out his name. Only then could a complaint be made to the appropriate authorities.
A few weeks later, I was contacted by a local police sergeant who was investigating a case in my ward. He asked whether it was possible for me to find out someone’s name. I suggested that he could contact Charnwood directly and he responded that it was “so bureaucratic” to do so that by the time he had the information it would be too late to act.
Most councils maintain ‘warning registers’ to identify residents who may be prone to violence or other aggressive behaviour. The Health & Safety at Work Act 1974 provides sufficient ‘lawful purpose’ under the DPA. Although elected members are not employees they do come into contact with such individuals and the Health & Safety at Work Act includes a duty to assist any other person who may be affected by the employer’s work. Members take part in the work of the council and may be affected by it – and be brought into contact with dangerous people, or exposed to other risks. They should therefore be extended the same protection that is available to council employees. Members also have a common law right of access to any information they reasonably need to carry out their duties and clearly this should include information that would keep them safe.
During the May local election campaign, I requested access to our ‘corporate warning register’ for my ward but was told that this would not be possible because I was engaged in party political activity and therefore it broke the rules on purdah. Only when I pointed out that during the process of canvassing I was also engaging with residents in my capacity as a borough councillor that all members were told that they could be given access to the register for their respective wards.
I duly made this request and received a redacted version which only identified the addresses and not the people. One of the entries was for a very pleasant Conservative-voting couple and when I enquired as to whether this was accurate, I was informed that the entry was because of an unidentified person who was associated in some way with that address. For all I knew they could have been the victims.
In contrast, council officers who are visiting residents are given the full information including their names and it remains unclear why councillors are only given partial information. According to the ICO, local authorities can disclose personal information to a councillor if they need to access and use the information to carry out official duties. For this purpose, it recognises that councillors are in the same position as an employee. Of course, it rightly stipulates they should only be given information that they need to carry out the duties, that it should be done on a case-by-case basis and that they should take care to ensure that the information is protected.
The ICO gives an example of a member of the housing committee who attends a meeting to decide whether or not to seek the eviction of a council tenant. The local authority can under the DPA provide the member with all the relevant personal information about the tenant and the circumstances giving rise to the possible eviction. It is clear that some councils are not prepared to go this far despite this guidance.
Charnwood has recently introduced a strategy for dealing with the problem of empty homes. In any one year, we estimated that the number of empty homes in the borough was equivalent to the number of new homes that we were required to build. Some of the empty properties were attracting anti-social behaviour and in many cases anecdotal evidence suggested that the owners simply did not know what to do with the properties and merely needed a little bit of encouragement.
In the process of devising this strategy we requested a list of empty properties in the borough that had been empty for more than six months. We were told that this would not be possible because it would be a breach of the DPA. This was on the basis that for each property we could identify the owner through the Land Registry and therefore it infringed on his or her rights. When I requested a list of properties that were owned by companies that had been empty for more than six months I was told that this was not practical to collate this data. Officers cited the Bexley FOI case which established that the release by councils of lists of empty properties owned by private individuals would be a breach of data protection principles. This ruling by the ICO, of course, made total sense because it would be foolish to release because it would provide a shopping list for local burglars and squatters.
In our case, we only asked to be given sight of the list without it being published in order for us to get a better understanding of what properties were remaining empty so that we could better formulate our policy. This was again refused and we were forced to go ahead without any proper understanding of what we were dealing with. It is only now, after we have employed a full-time empty homes officer, that he has discovered that many of these properties were not in fact unoccupied and had been erroneously listed on the council tax database.
It may be the case that the ICO would still argue that councillors meeting in private and not disclosing the data had a legitimate reason to see this list but, so far as I can ascertain, there has never been a ruling and it seems that officers were merely extrapolating a case which did not have a direct bearing on the issue.
A similar battle has occurred with one of our local parish councils which has decreed that if anyone wants to make a recording of one of its public meetings they need to inform councillors. The law is unambiguous on this point. Since 2014 The Local Government Act has permitted anyone to record the meeting.
The parish council seemed convinced that Section 36 of the DPA would enable them to prevent such activities. It has claimed that its view is supported by the ICO although it has not revealed what it has been told claiming that it is confidential. I therefore approached the ICO for clarification and was told that the DPA “would not prevent the recording of council meetings” but it added “the council could still prohibit the filming of meetings”.
When I challenged the ICO on this point only then did it concede that it only had the authority to oversee the DPA and was “unable to provide advice on any other functions conferred on a local authority under any other enactment” – which is precisely is what they had done.
The parish council has meanwhile discussed the issue and, according to the agenda, it received legal advice from the ICO and, bizarrely, from Leicestershire Constabulary. However, members of the public are not allowed to know what this advice was or what was decided because they also ruled they should be excluded on the basis of the Public Bodies (Admission to Meetings) Act 1960. Ironically, when the Government changed the law in 2014 specifically to permit the absolute right to record public council meetings Section 6 of this act was amended to explicitly permit “filming, photographing or making an audio recording of proceedings at a meeting”.
Need for guidance
The problem for councillors is that they do not have the time or energy to seek out the precise statute or guidance to ascertain whether they are entitled to see something or do something. Rather like the Little Britain character, Carol Beer, the receptionist who always replies “Computer says no” (followed by a strong cough in the customer’s face), there is an instinctive tendency of local government officers to err on the side of caution and deny all access to information.
The ICO already provides a considerable amount of assistance on its website but the feeling of many councillors who have come up against this ‘computer says no’ attitude is that it is simply too much effort to make a formal challenge and they merely accept the advice of the officers. What would be very useful is for the ICO to provide more guidance on how the DPA should be implemented when councillors are making requests for data as part of their job – either as representatives of residents in their ward or as members of a cabinet.