Paragraph 60 of the Committee's Issues and Questions paper specifically refers to the Local Government (Access to Information) Act 1985. This Act, which amended the 1972 Local Government Act, has undoubtedly helped to produce more openness in local government. At the time it was passed it represented a significant innovation. However, it also suffered from significant shortcomings. This is because the legislation, contrary to its title, primarily provides a right of access to meetings - rather than to information. Insofar as the Act provides access to documents, it is only those documents which relate to matters which have been, or in the next three days are about to be, discussed in public at a meeting of the authority. The bulk of information held by local authorities falls outside the Act's scope.

The Act's main features are:

• it extended the public's right of access to meetings to include subcommittee meetings (previously only meetings of the full council and its committees were covered);

• it limited the grounds on which meetings could be closed to the public to those in which any of 15 classes of "exempt" information or certain "confidential" information would otherwise be disclosed. (Previously meetings could be closed on the vague grounds that "publicity would be prejudicial to the public interest by reason of the confidential nature of the business to be transacted or for other special reasons" (1) );

• it established a new right of access to (a) reports discussed in public at a local authority meeting, and (b) background papers relating to such reports.

However, the great majority of documents held by a local authority are not accessible to the public, even if they do not contain exempt information. In practice, there is no right to information which relates:

• to a matter which has not reached a formal decision stage or which has been received after a decision has been taken. Once a decision has been taken - even one taken in public - related information which is subsequently obtained, for example about its implementation, is not accessible. It would be available only if discussed at a further meeting of the authority.

• to a decision which has been or is about to be taken by an officer under delegated powers without reference to a committee;

• to a decision taken at a meeting which was closed to the public. Much information dealt with in private may not itself be exempt. A meeting may be closed to the public because of the presence of a single item of exempt information in a report (perhaps just a sentence, or the name of an individual or company). However, all other information relating to that agenda item may not be exempt. There is no procedure under the Act for obtaining such non-exempt information - for example, by requiring disclosure of a copy of the report from which the exempt information has been deleted. (This may also provide opportunities for authorities to deliberately include an item of exempt information into the papers for a meeting to ensure that it can be held in private. At a conference some years ago a senior local government officer acknowledged that this had been done by his authority.)

• to a matter which was properly confidential at the time of the meeting but which is no longer. Some classes of information are exempt only so long as a particular decision is pending. For example:
  1. the terms proposed by an authority in negotiations relating to a contract may be exempt only until the contract is signed (2) ;

  2. the fact that an authority is proposing to issue a statutory notice may be exempt, only until the relevant decision has been taken (3) 

  However, if the meeting is held in private, there is no procedure for subsequently obtaining access to such papers after the contract has been signed or the decision taken;

• to a decision taken in public, but which the relevant council officer considers not to be relevant. Where an item of business is considered in public, background papers relied on in producing the report for the meeting must be publicly available (4) . However, a document is a background paper only if in the opinion of the relevant officer part of the report is based on it and has been relied on by him. Documents which were relevant to the decision, but which the officer had taken no account of, are not publicly accessible. The test of what constitutes a background paper depends on the "opinion of the proper officer", a term mentioned twice in the relevant sub-section (5) . It has been drafted as a subjective rather than an objective test, presumably to minimise the possibility of a legal challenge to any decision to withhold a document.

We frequently receive requests for advice from people seeking information about council matters, who have been disappointed to discover that the subject they are concerned with has been dealt with in a closed meeting, and that they are entitled to no information other than the brief and often uninformative summary provided in place of a minute of the proceedings (6) . Alternatively, the information relates to a matter which has not and is not about to go before a meeting of the authority at all.

Often, the only advice we can give is to suggest that the person contact a sympathetic councillor and ask whether he or she can attempt to have the issue tabled on the agenda of a forthcoming meeting, in the hope that (a) the the item will be discussed in public and (b) the information sought will be referred to in the officer's report to the meeting, or in the background papers.

An alternative would be for the councillor to attempt to obtain the information on behalf of the applicant, relying on the wider rights of access to information enjoyed by members of the authority. However, if the information was given to the member in confidence, he or she may not be free to pass it on to the individual who sought it. The member who does so may jeopardise his or her ability to obtain information in future, or conceivably (where the confidentiality is owed to a third party) risk civil action for breach of confidence.

It will be apparent from these comments that we take a rather different view from that expressed in a report on the 1985 Act by the Policy Studies Institute and the Department of the Environment, which concluded that, apart from a small number of secondary issues (unrelated to the above points) "there are no requirements related to the Act which are in need of revision or clarification" (7) .

We think the public's rights to local authority information are in need of substantial strengthening. We note that the Committee's Issues and Questions paper suggests, that "Local government is unique in being subject to statutory provisions on openness" (8) , but in fact this is not strictly the case. For example, the whole of the public sector, including central government departments, is now subject to the Environmental Information Regulations 1992, which establish a general duty to release environmental information, broadly defined (9) , on request, subject to a number of exemptions. Moreover, the two open government codes of practice, applying to central government and NHS bodies (10)  go beyond the provisions applying to local government in a number of respects. For example:

• bodies are required to publish the internal guidance used in taking decisions affecting the public

• individuals are entitled to reasons for administrative decisions affecting them

• in most cases, exempt information can be disclosed where there is an overriding public interest in openness there is a reasonably accessible appeals mechanism, via the Parliamentary or Health Service Ombudsmen, for challenging refusals to disclose.

The Open Government White Paper proposed that, in addition to these codes, there should be "a similar code of practice for local authorities" (11) . We regret that this proposal has been dropped. The local authority associations' Good Practice Note on Open Government which encourages councils to introduce their own policy statements on access to information is a helpful step but not an adequate substitute, since individual local authorities are free to ignore it.

Moreover, the open government codes are not in themselves sufficient. The Ombudsmen's recommendations are not legally binding. Although the Parliamentary Ombudsman's recommendations are usually accepted by Government, the temptation not do so in cases where a disclosure would undermine a key policy or the credibility of a minister, may be great. The problem is even more acute in local government where in many past years some 5% of the Local Government Ombudsman's recommendations have not been accepted. A second disadvantage of a code is that it cannot override the 250 or so statutory prohibitions on disclosure, which appear in legislation (12) , including provisions enforced by local authorities such as the Health and Safety at Work Act and the Weights and Measures Act.

Finally, the Local Ombudsmen's powers to investigate complaints are limited. Many matters about which the public may require information cannot be the subject of an investigation by them. For example, the Ombudsman cannot investigate matters which "in his opinion affects all or most of the inhabitants of the area of the authority" (13)  or matters relating to contractual or commercial transactions, appointments and personnel matters, the conduct of legal proceedings, the actions of a police authority and various other matters (14) .

We believe that a Freedom of Information Act providing a statutory right of access to information across the public sector, subject to appropriate exemptions, would provide more effective accountability, and greater opportunities for the public to learn about and influence the decisions of local authorities and other public bodies.