Line to take - LTT60 - Interpreting "proceedings" for the purposes of regulation 12(5)(d)

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  • FOI/EIR: EIR
  • Section/Regulation: reg 12(5)(d)
  • Issue: Interpreting "proceedings" for the purposes of regulation 12(5)(d)
  • Source: Information Tribunal
  • Details: Archer / Salisbury District Council (9 May 2007)
  • Related Lines to Take: n/a
  • Related Documents: EA/2006/0037, 2003/4/EC
  • Contact: LA / GF
  • Date: 08/05/2009
  • Policy Reference: LTT60
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

The Commissioner interprets “proceedings” as possessing a certain level of formality (i.e. they are unlikely to encompass every meeting held / procedure carried out by a public authority). They will include (but may not be limited to):

  • legal proceedings;
  • formal meetings at which deliberations take place on matters within the public authority’s jurisdiction; and
  • where a public authority exercises its statutory decision making powers.

Public authorities can only refuse to disclose information relating to proceedings where the confidentiality of those proceedings is provided by law. This includes common law or specific statutory provision. If the confidentiality of the proceedings is not provided by law, regulation 12(5)(d) will not apply.

Further Information

Proceedings

As a starting point, it is useful to bear in mind Article 4(2) of the EU Directive from which EIR originates which states that “the grounds for refusal… shall be interpreted in a restrictive way” when considering what can be taken into account under “proceedings” in regulation 12(5)(d), which provides that:

For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect –
(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law.

Proceedings is defined in the dictionary as:

  • an act or course of action;
  • institution of legal action or any step taken in legal action;
  • minutes of the meeting of a club, society etc;
  • legal action/litigation;
  • events of an occasion/day-to-day meeting.

With respect to the restrictive reading of exceptions, the Commissioner interprets that for the purposes of regulation 12(5)(d), proceedings require a certain level of formality (i.e. they are unlikely to encompass every meeting held / procedure carried out by a public authority). It will include (but not be limited to):

  • legal proceedings;
  • formal meetings where deliberations take place on a matter within a public authority’s jurisdiction; and
  • where a public authority exercises its statutory decision making powers.

In any of these circumstances, the proceedings will have a clear tenure, with a determined outcome. They potentially could be embodied in a public authority’s constitution or the terms of reference of its governance.

The above interpretation corresponds to the Tribunal’s consideration of proceedings in Archer v The Information Commissioner and Salisbury District Council where it said: “we consider that “proceedings” would include legal proceedings. It would also include a formal meeting of the Council at which deliberations take place on matters within the Council’s jurisdiction” (paragraph 68).

Information which may have an adverse effect on the confidentiality of proceedings

In Archer v the Information Commissioner and Salisbury District Council, the requested information was a Joint Report referred to in the minutes of a particular Council meeting. The Tribunal went on to say that “[i]t is not clear to us from the evidence whether the Joint Report which was discussed at the meeting, was prepared exclusively for the discussion at the meeting, and we are not satisfied therefore, that it qualifies as “proceedings”. Accordingly, we do not find that regulation 12(5)(d) applies to the Joint Report in this respect“ (paragraph 70).

Although the Commissioner accepted that this information should not have been withheld under regulation 12(5)(d), he does not agree with the Tribunal’s suggestion that the Report in itself qualifies as “proceedings”. The Commissioner anticipates that there will be circumstances where proceedings deal with information that has not been exclusively prepared for that purpose. In such cases, he will consider whether disclosure of information related to the proceedings (not limited to documents prepared exclusively for the proceedings) would have an adverse effect on the confidentiality of those proceedings. In such circumstances they would be exempt under regulation 12(5)(d).

Confidentiality must be provided by law

Public authorities can only refuse to disclose information relating to proceedings where the confidentiality of those proceedings is provided by law. This includes common law or specific statutory provision. If the confidentiality of the proceedings is not provided by law, regulation 12(5)(d) will not apply.