Section 3 of the Local Government, Planning and Land Act 1980 gives the Secretary of State the power to issue a code of practice about the publication of information by local authorities relating to the discharge of their functions. The Secretary of State for Communities and Local Government has just issued a new Local Government Transparency Code . It applies in England only and replaces the previous version.
The code requires councils (as well as, amongst others, National Park Authorities, Fire and Waste Authorities and Integrated Transport Authorities) to proactively publish certain categories information whilst also recommending that they go beyond the minimum. It follows last year’s consultation on Improving Local Government Transparency: “Making ‘The Code of Recommended Practice for Local Authorities on Data Transparency ’ enforceable by regulations”. In that consultation, Eric Pickles, the Communities Secretary, wanted the power to enforce the Code through regulations. This would have given him the power to seek an order from the courts that an authority is in breach of its obligations, and/or an order that it must comply with its duties. It seems that this idea has been quietly dropped but the code does say:
“In principle all data held and managed by local authorities should be made available to local people unless there are specific sensitivities (e.g. protecting vulnerable people or commercial and operational considerations) to doing so.”
Part 2.1 of the code sets out information, which must be published at least quarterly. This includes:
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Each individual item of expenditure exceeding £500 e.g. invoices, grant payments, expense payments, rent etc.
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Government Procurement Card transactions
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Procurement information which includes details of every invitation to tender for contracts to provide goods and/or services with a value that exceeds £5,000, together with any contract, commissioned activity, purchase order, framework agreement and any other legally enforceable agreement, also with a value that exceeds £5,000.
Part 2.2 of the code sets out nine sets of data which must be published annually. This includes local authority land, grants to voluntary bodies , trade union facility time, parking information and senior salaries. In relation to trade union facility time, authorities should publish the amount spent on providing support and facilities to trade unions within their workforces, and specify which unions. In relation to parking charges, categories include the number of off-street parking places and the revenue raised from them; the number of on-street parking places and the revenue they raise; as well as the revenue from parking fines and the number of free parking spaces available.
On salaries the code requires publication of more information than is currently required under the Accounts and Audit (England) Regulations 2011. Local authorities must now place a link on their website to these published data or place the data itself on its website, together with a list of responsibilities (for example, the services and functions they are responsible for, budget held and number of staff) and details of bonuses and ‘benefits in kind’, for all employees whose salary exceeds £50,000. The key differences between the requirements under this new code and the Regulations referred to above is the addition of a list of responsibilities, the inclusion of bonus details for all senior employees whose salary exceeds £50,000 and publication of the data on the authority’s website. What effect will this have on FOI requests for salary information? Certainly senior figures will find it hard to claim that they have an expectation of privacy when it comes to FOI requests for similar information. More on salaries here.
Part 3 of the new code sets out the information, which is recommended to be published, but there is no requirement to do so. This is about providing more detail to information already published under the required category e.g. more details about expenditure, procurement, grants etc. For example instead of just publishing details of expenditure over £500 on a quarterly basis, local authorities are encouraged to publish expenditure over £250 on a monthly basis or better still in real time.
Existing restrictions on disclosing information still apply though. Paragraph 14 of the Code states:
“Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.”
However where a qualified exemption under FOI applies, the appearance of the requested information in one of the categories set out in the code will have a big impact on the public interest in support of disclosure.
How should data under the new code be published? The code states that it should be in a format and under a licence that allows open re-use, including for commercial and research activities, in order to maximise value to the public. The Open Government Licence published by the National Archives should be used as the recommended standard. Where any copyright or data ownership concerns exist with public data these should be made clear. Data covered by Part 2 of the code must be published in open and machine-readable formats.
It will be interesting to see how this new code works with the new dataset obligations under the FOI, which came into force on 1st September last year via the Protection of Freedoms Act.
How far will local authorities go in publishing information under the code? Will they just do the bare minimum? (Answers on a postcard or in the comment field below.)
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