Kent County Council is pretty keen to ensure that its now-abandoned proposals to shut or hand over the running of some 40-50 libraries is not seen by anyone.
Efforts by a vigilant library watcher, Ian Clark, to persuade the council the report should be published have been rebuffed a second time after KCC rejected an appeal he made under the Freedom of Information Act.
In its original decision, KCC relied on an exemption that permits public bodies to withhold information where it is prejudicial to the effective conduct of public affairs - Section 36 - an exemption that has proved rather controversial and can only be used if it is sanctioned by a senior official, in this case the council's monitoring officer Geoff Wild.
When such decisions are appealed, the appeal has to be conducted by someone "independent or senior" to the person who made the original decision. So it fell to KCC's group managing director Katherine Kerswell (who is indisputably senior).
This is the text of the reply sent to Ian dismissing the appeal:
Dear Mr Clark
I have been asked by the Managing Director Katherine Kerswell, to reply
to your request that KCC review the handling of your original request
for information.
You have informed us that you are unhappy with our decision to withhold
a copy of the "library closure proposals" put before the conservative
group meeting w/c 20th June 2011 on the grounds that disclosure is
likely to prejudice the effective conduct of public affairs. This
particular exemption (section 36 of the Freedom of Information Act 2000)
can only be invoked by the County Council's Monitoring Officer who is
also the Director of Governance & Law.
Internal reviews must be conducted by someone independent and/or senior
to the person that made the decision. In order to be able to fulfil our
obligations to you under section 45(e) FOIA, the Managing Director as
the superior officer to the Director of Governance and Law has reviewed
the information that was withheld from you.
The nature of the information is such that she concurs that its release
would undeniably prohibit the free and frank exchange of views and
discussion of ideas in the future which is essential to the effective
conduct of business within the County Council before matters come into
the public domain. It would also cause unnecessary public concern over a
number of ideas that were discussed that may not come to fruition and
have not yet appeared within any blog or in the public domain.
It is essential in any local authority for the elected members to be
able to discuss ideas with confidence and ensure that the policy options
that do end up in the public domain are the most appropriate. Disclosure
of this kind would significantly undermine their confidence in such a
necessary and essential part of our governance and would undermine the
effective conduct of public affairs.
Therefore, the Managing Director maintains that the use of this
exemption was correct.
There are a couple of points worth making here, which I've blogged about before. Where is the "clear, specific and credible" evidence that the "substance or quality of deliberations or advice would be materially altered for the worse by the threat of disclosure?" as the Information Commissioner suggests should be provided?
The response talks about the belief that disclosure would "prohibit" free and frank discussions. The FOI Act says nothing about prohibition in the use of Section 36 - it talks about whether disclosure would inhibit the ability of public bodies to explore extreme options.
It is not the case that the ideas which the Conservative group discussed have "not yet appeared within any blog or in the public domain" - they have and here it is.
So, I am not entirely convinced and it would be interesting to see what the Information Commissioner thinks.
And it will be interesting to see how KCC chooses to meet its statutory obligations under the Local Government Act 2000. Access to information regulations require councils making executive decisions to not just publish records of those decisions but detail all other options that were considered and subsequently disregarded.
And it won't be long before we do have some indication of the new proposals. A public consultation on the future of the library service gets underway next month.
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