Freedom of information code - adjudication

Issued by Richard Ayre, Law Society freedom of information adjudicator, on 16 July 2002

The issue

Whether the decision to place a censure motion for debate at a forthcoming Law Society Council meeting within part II (the confidential part) of that meeting's agenda was taken in accordance with the freedom of information code and whether it should therefore stand.

The background

A censure motion, critical of the main board of the Society, was submitted for debate at a meeting of the Society's council scheduled to begin on Wednesday, 17 July.

In the agenda circulated to members in advance, the motion was placed as item 33, for discussion in part II of the meeting.

That part of the meeting is designated confidential, and only members of council may attend.

Part I, by contrast, is open to all members of the Society and to legal journalists.

A note on the agenda said of item 33: 'This motion is not for part I debate by virtue of paragraph B.3.8 of the code of practice on freedom of information, in that it contains information other than that covered by any other exception, the publication of which would significantly prejudice the interests of the profession as a whole.'

Eileen Pembridge, a member of the council and a seconder of the censure motion, citing section F of the freedom of information code (the code) wrote directly to the adjudicator to ask for a review of the decision to place the item in part II.

The adjudicator wrote to the chief executive of the Law Society on 14 July inviting its submission on the substance of the decision to place the censure motion in part II, and on the question of whether, under section F, Ms Pembridge had been entitled to appeal direct to the adjudicator.

In the belief that the council, in adopting section F of the code, must have anticipated that any review of the designation of business as confidential should take place in time to affect the conduct of the meeting, the adjudicator asked the Society to respond as a matter of urgency.

Submissions

In lodging her appeal, Ms Pembridge cited paragraph F.1 of the code, which says that 'the board shall be the body responsible for designating business as confidential for a council meeting, subject to review by the adjudicator if the designation is questioned'.

Ms Pembridge asserted that the board had not itself taken the decision in this case and she offered to produce a member of the board as witness to that effect.

Ms Pembridge drew attention to what she believed was a potential ambiguity in that part of paragraph F.1 which says that '...no business for a council meeting shall be designated as confidential by the board unless it consists wholly or substantially of information falling within the exceptions to disclosure in section B.3 (with the exception of that contained in paragraph B.3.8)'.

Ms Pembridge's preferred view was that the words in parenthesis meant that business could not be treated as confidential solely on the grounds that it fell within section B.3.8 - the very reason stated on the agenda to justify its placing in part II.

Even if the provisions of section B.3.8 were to apply, Ms Pembridge argued that the censure motion did not contain information which would 'significantly prejudice the interests of the profession as a whole'.

She believed that the decision to designate the motion in part II had been to 'avoid political embarrassment to a small group of people responsible for running the Society'.

Ms Pembridge lodged her appeal direct to the adjudicator (rather than by asking the chief executive to initiate an adjudication) because she believed that section F of the code (dealing with the adjudicator's role in reviewing the designation of business of council meetings) was not subservient to sections G and I which, by implication, describe the process for appeal only against a failure by the Society to provide information not exempted by the code.

The Society, in its submission, did not contest the right of a council member to appeal direct to the adjudicator under section F.

The Society did not address, and by implication accepted, Ms Pembridge's assertion that the decision to place the censure motion in part II had not been taken by the board, as the code appears to require.

However, the Society pointed to a direct conflict between section F of the code and section 17(5) of the general regulations of the Society which states that 'the designation of business as confidential shall be determined by the relevant office-holder and shall be final'.

The 'relevant office holder' is defined as the president, vice-president, or deputy vice-president.

The Society pointed to another conflict between the code and general regulation 17(6) which says: 'Business shall be designated as confidential only if this is, in the opinion of the relevant office-holder, in the Society's interests.

Guidelines shall be settled by the council for the designation of business as confidential.'

The Society's submission suggested that the reason why the censure motion had been designated as part II business was because of a concern that part of the wording might be defamatory.

The Society's view was that, though there would be qualified privilege attaching to a defamatory motion if it was published only to those strictly needing to receive it (members of council), the defence of qualified privilege would fall if the motion were presented in open session.

However, the Society disclosed the fact that the reference to section B.3.8 which appears on the agenda as the justification for the motion being placed in part II 'appears to have been added from somewhere'.

The Society accepted that any decision by the adjudicator must be made in accordance with the code and could not address the defamation issues.

Adjudication

This is only the third adjudication under the Society's freedom of information code and it is the second to highlight some uncertainties or inconsistencies in the code's wording.

That is not wholly surprising because the code is so new, but it points to the need for the council to review it in the light of experience, and in some cases to clarify its intentions.

Ms Pembridge appears justified in her assertion that section F is not subordinate to sections G and I, and that she was acting in accordance with the code by appealing direct to the adjudicator.

Helpfully, the Society did not contest this.

The council should clarify this point in a future revision of the code, and may wish to consider the view expressed in the Society's submission that there should be a general right of direct appeal to the adjudicator for members of the council.

It is clear that the adjudicator must base decisions on the code.

Where there is a conflict between the code and other policies of the Society, it is for the Society to resolve them.

Paragraph F.1 of the code says: 'The board shall be the body responsible for designating business as confidential for a council meeting ...'.

Ms Pembridge asserts that the board did not take the decision about the censure motion, and the implication of the Society's submission is that it was taken by an office-holder.

Though it is possible to construct a scenario in which the board is responsible (in accordance with the code) while a designated office-holder determines the decision (in accordance with the general regulations), the common-sense meaning of F.1 is that the board should take the decision about the designation of business as confidential.

That appears not to have happened in this case, and on those grounds alone under the code the appeal must succeed.

However, even if the disputed decision was taken by the appropriate person under the general regulations, those regulations (dated December 1997) say in paragraph 17(6) that 'guidelines shall be settled by the council for the designation of business as confidential'.

Section F of the code (being subsequently adopted by the council in October 2000) appears to constitute such a guideline, so it would seem that the criteria for the designation of business as confidential, whether the decision is taken by an office-holder under the general regulations or by the board under the code, must be the criteria laid down in the code.

The criterion stated by the Society in the published agenda for its decision was a reliance upon section B.3.8 of the code.

It appears from the Society's written submission to the adjudicator that these were not actually the principal grounds for the decision, but it is necessary to consider whether, had they been, they would have been appropriate.

Paragraph F.1 of the code says that 'no business for a council meeting shall be designated as confidential by the board unless it consists wholly or substantially of information falling within the exceptions to disclosure in section B.3 (with the exception of that contained in paragraph B.3.8)'.

This is a particularly convoluted construction which Ms Pembridge concedes might have been intended to mean that the words 'wholly or substantially' need not apply where the information involved consists of that defined in B.3.8 as being likely to 'significantly prejudice the interests of the profession as a whole.' If that was indeed the intention of council in adopting the code it would surely have read 'no business for a council meeting shall be designated as confidential by the board unless it consists wholly or substantially (except in the case of paragraph B.3.8) of information falling within the exceptions to disclosure in section B.3'.

That is not what it says.

Far more probable is that the council intended to exclude the category defined in B.3.8 from the list of exceptions in the rest of B.3 which could be used to justify a decision to designate council business as confidential.

If that interpretation is correct, the very declaration in the published agenda that the censure motion had been placed in part II by virtue of B.3.8 runs counter to paragraph F.1, and therefore, the appeal succeeds.

There is an urgent need for the council to clarify F.1 in this respect for the avoidance of future doubt.

For the sake of certainty, it may be helpful to consider whether the appeal would succeed irrespective of the interpretation given to the section in parenthesis in paragraph F.1 - in other words, if it was the intention of council to exclude from part I of its meetings information 'the publication of which would significantly prejudice the interests of the profession as a whole'.

Nothing in the wording of the censure motion as tabled could be regarded as prejudicing the interests of the profession as a whole.

Furthermore, the mere fact that such a motion is debated in public rather than in private could be argued as being more likely to raise than to lower the regard in which the profession is held.

Even if, as the Society apparently fears, some of the wording of the motion may be thought to be defamatory of members of the board, that could hardly be regarded as a criticism of the wider profession.

If, on the other hand, the decision to place the motion in part II was taken not because of anything in the motion per se but because of a fear that during discussion of it things would be said which would bring the wider profession into disrepute, that is such a broad assumption that it could be applied to almost any discussion and certainly to any critical motion, and the consequence would be that strong criticism might never be allowed to be aired in part I of the meeting.

That would run counter to the Society's stated commitment to openness and accountability.

On these grounds, too, the appeal must succeed.

Summary

This adjudication makes no comment on the appropriateness or otherwise of the proposed censure motion.

It was appropriate and in accordance with the code for Ms Pembridge to raise her appeal direct with the adjudicator.

The decision to place the censure motion in part II appears not to have been taken by the board, as the code suggests it should be.

Paragraph B.3.8, which was the stated reason for the Society's decision, appears to be specifically excluded under paragragh F.1 as a reason why business can be designated confidential.

Even if the provisions of B.3.8 were not excluded under F.1, nothing in the censure motion itself constitutes 'significant prejudice to the interests of the profession' and a decision to designate discussion of such a motion as confidential without clear evidence that discussion in public would be likely to lead to significant prejudice to the interests of the profession as a whole is contrary to the spirit of openness and accountability which the Society espouses.

On all counts, the appeal succeeds.

Therefore, the council is urged, subject to other considerations outside the remit of the code, to table the motion for part I discussion.

The council is also asked to take account of the issues raised in this adjudication and to clarify the code accordingly.