The role of local government solicitors as guardians of the Freedom of Information Act 2000 could be undermined by a provision that delegates powers to a council's chief executive in the lawyer's absence - raising conflict of interest issues - solicitors warned this week.

The Association of Council Secretaries and Solicitors (ACSeS) has written to the Lord Chancellor, Lord Falconer, seeking clarification over the powers of delegation in the Act, which came into force last month.


Under the legislation, a council's monitoring officer - normally a solicitor - is responsible for deciding whether the information requested qualifies for an exemption and, therefore, does not have to be disclosed.


Edila: law lacks sense

However, solicitors are concerned that if the monitoring officer is away, this responsibility passes to the chief executive rather than a deputy monitoring officer, who would also be a lawyer.

Dennis Hall, former chairman of the Solicitors in Local Government Group and solicitor and monitoring officer at Sedgefield Borough Council, said: 'Confidential advice is most likely to come from the chief executive. You could have the situation where a chief executive is deciding whether or not to withhold his own advice, which would be a conflict of interest.'


ACSeS president Gifty Edila said: 'It would have made sense, where the monitoring officer is legally qualified, to have the decision pass to the deputy monitoring officer or a person whom the lawyer designates to act in their absence.'


She added: 'We are amazed that the Act only allows for two people - the monitoring officer or the chief executive - to make these decisions. What will happen if they are both away? This beggars belief and shows an ignorance of how we operate locally.'


A Department for Constitutional Affairs spokesman said that people could appeal to the Information Commissioner's Office if their request for information was refused. He added that it was unlikely that both individuals would be unavailable throughout the 20 working day time limit to respond to requests.