Some council chiefs, as well as some councillors, do not like the Freedom of Information Act 2000(FOI) claiming, amongst other things, that it costs too much and is used to request trivial information. Against this backdrop, how do council FOI officers deal with requests (often from journalists) for the names of councillors who are in arrears or have defaulted on their council tax bills?
Some councils have refused such requests citing the section 40(2) exemption for third party personal data. For this exemption to be engaged a public authority must show that disclosure of the name(s) would breach one of the Data Protection Principles. Most cases in this area focus on First Principle and so public authorities have to ask, would disclosure be fair and lawful? They also have to justify the disclosure by reference to one of the conditions in Schedule 2 of the DPA (as well as Schedule 3 in the case of sensitive personal data). In the absence of consent, most authorities end up considering whether disclosure is necessary for the applicant to pursue a legitimate interest and, even if it is, whether the disclosure is unwarranted due to the harm caused to the subject(s) (condition 6 of Schedule 2)? Of course when the new General Data Protection Regulation (GDPR) comes into force on 25th May 2018 the disclosure of the data will have to be justified by reference to Article 6 of GDPR.
A 2016 Upper Tribunal decision sheds light on this difficult issue. Haslam v Information Commissioner and Bolton Council  UKUT 0139 (AAC) (10 March 2016) concerned a request by a journalist (Mr Haslam) for disclosure of information about councillors who had received reminders for non-payment of council tax since May 2011. The Council told the appellant that there were six such councillors and informed him which political party they were members of, how much had been owed, how much was outstanding, and that two had been summoned to court. The Appellant asked for the names of the individual councillors. The Council refused stating that the names were exempt from disclosure under section 40(2) FOI. The Appellant appealed to the First-tier Tribunal, against the decision of the Information Commissioner to uphold the Refusal Notice, in relation to the two councillors who had been summoned to court. The First-tier Tribunal dismissed the appeal. Subsequently one councillor voluntarily identified himself, so that there was only an issue regarding one councillor before the Upper Tribunal.
The Upper Tribunal allowed the appeal concluding that releasing the name would not contravene the data protection principles, because processing was necessary for the purposes of legitimate interests pursued by the Appellant, and was not unwarranted because of prejudice to the councillor’s rights/legitimate interests. This was a public matter in which the councilor could not have a reasonable expectation of privacy. Judge Markus in her judgment said:
“40. But, in the case of a councillor, it is not only a private matter. A councillor is a public official with public responsibilities to which non-payment of council tax is directly and significantly relevant. A number of specific features of this were advanced in submissions to the First-tier Tribunal. In particular, section 106 of the Local Government Finance Act 1992 bars a councillor from voting on the Council’s budget if he or she has an outstanding council tax debt of over two months. If a councillor is present at any meeting at which relevant matters are discussed, he or she must disclose that section 106 applies and may not vote. Failure to comply is a criminal offence. Thus council tax default strikes at the heart of the performance of a councillor’s functions. It is evident that setting the council’s budget is one of the most important roles undertaken by councillors. The loss of one vote could make a fundamental difference to the outcome. This adds a significant public dimension to the non-payment of council tax. The very fact that Parliament has legislated in this way reflects the connection between non-payment and the councillor’s public functions. Moreover, as the Commissioner observed in his decision notice, recent failure to pay council tax is likely to impact on public perceptions and confidence in a councillor as a public figure.
- These factors are of critical relevance to expectation. As the Commissioner had observed, those who have taken public office should expect to be subject to a higher degree of scrutiny and that information which impinges on their public office might be disclosed. More specifically, unless the local electorate know the identity of a councillor to whom section 106 applies, they cannot discover that that councillor is failing to fulfil his functions. Nor can they know that the process of declarations under section 106 is being adhered to. In addition the electorate may wish to know whether they can trust a councillor properly to discharge his functions if he stands for office again.”
So there we have it. Councillors can normally expect to have their names disclosed if they default on council tax. However this is not an absolute rule. In the words of Judge Markus (at paragraph 56):
“There may be exceptional cases in which the personal circumstances of a councillor are so compelling that a councillor should be protected from such exposure.”
The Bolton News, where the Appellant works, finally named the councillor who is the subject of this case (Click here if interested). By the way, I may share a name with him but I can assure you that I am up to date with my council tax bill payments!
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