1 January 2023
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Have you ever had one of those Kafkaesque experiences trying to navigate your way through a bureaucracy to get something you want? Where, every time you think you might have got somewhere, you find yourself back in the middle of a maze? Until you ask yourself whether it's worth all the effort?
Well, me too. I’ve had over a year navigating my way through a legal maze trying to get some information from Hughenden Parish Council.
To cap it all, along the way, I was accused of breaching HPC’s Code of Conduct by using the Freedom of Information Act. Which is distinctly Kafkaesque (and complete nonsense).
However perhaps the exit from the maze is now in sight.
Back in November 2021, the then Clerk of HPC informed Council that it should pay Hughenden Community Support Trust £26,400 of “back rent”. The rent was for leasing land from HCST which HPC had transferred to HCST in October 2015. The back rent was to be paid from 1 January 2015.
As you may have gathered from some of my blogs, I believe that the transfer was unlawful and the leases to rent back the land are invalid. So, I suggested the Clerk obtain legal advice on the validity of leases.
The next day, 1 December 2021, the Chairman of the Environment Services Committee convened an Extra- ordinary meeting for 7.30 pm the same day.
No agenda was posted at the time and the meeting was held in confidential session. According to the draft minutes put online much later the Committee resolved “the expenditure of up to £1000 to receive legal advice from BP Collins, [HPC’s solicitors], relating to allotments and to instruct the clerk to seek the answers to defined questions without delay”. The minutes have never been confirmed.
By mid-day on the 1 December, the then Clerk informed me that HPC’s solicitors had confirmed the leases were valid. This was rather odd as the Environment Services Committee hadn’t yet met to authorise her to obtain the legal advice.
1st attempt to get the legal advice
I asked for a copy of the legal advice but was told that it would not be appropriate. This too was odd; there are various legal exemptions for the release of information under the Freedom of Information Act but “inappropriateness” is not one of them.
2nd attempt to get the legal advice
Hughenden Parish Council has no policies or procedures for handling freedom of information requests, so I followed the guidance of the Information Commissioner’s Office. I asked for an internal review of the then Clerk’s decision not to release the legal advice.
However, at an Extra-ordinary Council meeting on 25 January 2022, the Council decided that all the councillors, except me, should have a copy of the legal advice. It then decided to set aside considerable taxpayers’ money to pay the rent. So, Council had refused me access to the legal advice which was critical in making that decision – a decision which affected my constituents.
The council gave no reason for its refusal at the meeting.
The unconfirmed minutes say this was due to “the FoI Exemption; S(2) 42 Legal professional privilege". This too was odd as S(2) 42 of the Freedom of Information Act does not exist; legal professional privilege is covered by Section 42 (1) of the Act.
The unconfirmed minutes have never become confirmed as the Council became inquorate 4 days later.
3rd attempt to get the legal advice
I did wonder whether it was worth pursuing the issue but decided to carry on. The period of the leases is 99 years and represents considerable taxpayers’ expenditure; the legal advice was important.
Moreover, I thought it was undemocratic for a majority of councillors to deny me access to legal advice which I needed to take a decision on behalf of my constituents. And for no good reason.
So, I made a formal complaint to the Information Commissioner explaining that the Council needed to balance, on the one hand, the benefit in releasing the advice to a councillor who needed it, against, on the other hand, any harm that might ensue from the release; that is what the Freedom of Information Act requires.
However, the Information Commissioner upheld HPC’s decision. In doing so, he completely ignored the fact that the release of the legal advice would be to a councillor rather than to a member of the public.
I was back in the middle of the maze.
4th attempt to get the legal advice
By this time, it was July 2022 and again I wondered whether it was worth pursuing the case. But the Commissioner’s decision annoyed me. It was unprofessional, undemocratic and just not fair!
So, I appealed against the decision of the Information Commissioner to the First Tier Tribunal, General Regulatory Chamber.
In September 2022, the Information Commissioner filed his response to my appeal. He also applied to strike out my case on the basis that “the appeal had no reasonable prospects of success”.
I was heading back to the middle of the maze again.
5th attempt to get the legal advice
Was it really worth it I thought? Possibly not, but I get pretty angry when things are not fair. So, I submitted a response, arguing that the Information Commissioner had ignored the democratic rights of constituents to have their councillors properly informed about the legal position when they took decisions on their behalf.
I pointed out that that the Commissioner’s refusal to consider these democratic rights had national implications for parish, district and unitary authorities.
Just before Christmas, the Judge issued her findings on the application to strike out my case. She found that I had clearly established “a triable issue between the parties, which is whether the Decision Notice [issued by the Information Commissioner] correctly applied the public interest balancing test to her particular circumstances”.
The Judge refused to strike out the case and it will be heard by the tribunal.
I am delighted. I realise that I may lose my case when it is heard but at least a judge has decided there is a case to be heard.
I am also delighted because during this process an individual alleged that I had breached HPC’s Code of Conduct by using the Freedom of Information Act. This, and other, allegations have caused me considerable stress and a substantial amount of work.
However, if a judge decides a councillor (i.e. me) has a triable case under the Act at a tribunal, then my use of the Act has to be lawful and proper.
An allegation that I have breached HPC’s Code of Conduct by using the Freedom of Information Act is patently absurd.
This allegation was made in an open-e-mail and not as a formal complaint to the Monitoring Officer. I am therefore not bound by any confidentiality restraints and can tell you about the allegation.
I can also tell you that I took advice on this and other allegations by this individual and, in the light of that advice, declined to meet with the individual unless the meetings were witnessed or recorded. Councillors are allowed to do this under HPC’s Code of Practice. As I did this in an open e-mail, I can release this information too.
I am happy to let anyone have copies of the relevant papers on request.
And, if you have read this far, I wish you a warm and healthy New Year.