Download: IC-200073-B8W0_FOI_correspondence.zip (2.2 MB)

In 2016, the Department for Communities and Local Government (DCLG) carried out a public consultation on a proposed update to the Local Government Transparency Code 2015. The Transparency Code sets out minimum requirements for data that local authorities in England should publish.

The scope of the consultation was, in particular, changes to the way that local authorities record details of their land and property assets, and publish information about their procurement, their contracts and the delivery of some of their services. DCLG also proposed to include new requirements about information on parking charges and enforcement, about the way transparency data is published and presented, and about the dealings of local authorities with small and medium-sized enterprises.

The consultation closed in July 2016. More than six years later, the GOV.UK page still says the department is analysing public feedback to the consultation.* DCLG has changed names twice and is now the Department for Levelling Up, Housing and Communities (DLUHC).

* DLUHC has now updated the GOV.UK page to say the 2016 consultation has been "overtaken by current policy".

FOI request and response

Last year, I submitted a freedom of information request to DLUHC for some information about the outcome of the consultation. DLUHC disclosed a list of 147 organisations that responded to the consultation. However, the department refused to disclose other information I had requested:

  • Any breakdown or analysis of responses to the questions in the consultation.
  • The most recent unpublished version or draft of any consultation outcome or Government response to the consultation.
  • Any correspondence, meeting minutes, or other record that relates to the decision not to publish the outcome of the consultation.

DLUHC confirmed that it held relevant information, but maintained that the information was exempt from disclosure under section 35(1)(a) of the FOI Act, as it related to the development of government policy:

There will always be some general public interest in the disclosure of internal government information in order to promote transparency and accountability of public authorities. The Department recognises that this allows for the scrutiny of government policy and decision-making processes.

However, regarding the exemption at section 35(1)(a), the Department must also consider the public interest which lies in maintaining a 'safe space' in which officials and Ministers are able to reach policy decisions away from external interference and distraction. Disclosure of this internal information would unacceptably erode into the aforementioned 'safe space' and is liable to cause a 'chilling effect' on general policy making. This 'chilling effect' relates to the notion where under the impediment of distraction, policy officials and Ministers may feel less able to participate in free, frank, and objective discussions regarding any information and advice put before them. We have therefore decided that, on balance, it is not in the public interest to disclose this information at this time.

Complaint to ICO

Following an internal review, which upheld the original response, I complained to the Information Commissioner's Office (ICO) about DLUHC's handling of my FOI request. I argued:

There have now been two general elections and several changes of Government since the consultation closed. I doubt there is any live policy process to protect.

There have been no signs that the Government intends to revive the proposals in the consultation, or to further develop the Local Government Transparency Code. Were the Government to do so, I think it is unlikely that the formulation and development of policy in this area would rely significantly on analysis of responses to the 2016 consultation, or on other information within scope of my information request.

Given the timing of my request, it is implausible that release of the information I have requested has any significant potential to damage policymaking. I cannot see that the public interest in maintaining the section 35(1)(a) exemption outweighs the public interest in disclosure.

ICO decision

The Information Commissioner decided, in a decision notice issued last month, that all the withheld information engaged section 35, but that the balance of the public interest favoured disclosure of some of it.

The withheld information comprised of a ministerial briefing note, a briefing note for a civil servant, and an unpublished draft copy of DLUHC's proposed response to the 2016 consultation.

The ICO required DLUHC to disclose the latter document, titled "Government response to consultation on changes to the Local Government Transparency Code 2015" – with the proviso that DLUHC was allowed to redact each section titled "Government response".

DLUHC has now sent that redacted document to me. Essentially, the redacted document is a consultation outcome in standard format, with factual analysis of how stakeholders responded to the consultation, but without the summaries of how the Government proposed to take those responses into consideration.

ICO upheld DLUHC's decision to withhold the two briefing notes, as DLUHC maintained that proposals for reform of the Transparency Code were still being discussed:

10. The complainant argued that the policy process in this case was, at best, dormant and possibly complete because the consultation had finished in 2016 and no significant activity appeared to have taken place since.

11. The public authority maintained that proposals for reform were still being discussed. It noted that reforms proposed in the Procurement Reform Bill, currently before Parliament, would overlap with the requirements of the Transparency Code and, as such, it was possible that amendments to secondary legislation, affecting the Transparency Code would be put forward in 2023. The public authority noted that, whilst it had intended to deal with this issue earlier, two unexpected general elections (in 2017 and 2019) plus the pandemic had kept the issue away from the top of the priority list.

12. Whilst the Commissioner would have preferred to have been presented with less ambiguous evidence that this particular policy process remained ongoing, he does accept that there is no definitive evidence that the process has stopped. The withheld information certainly does not indicate that there was any intention (at least as late as 2018) to simply leave the Transparency Code in its current form. Whilst the Commissioner is of course an advocate for transparency both in local government and across the public sector, he accepts that, with Brexit, a global pandemic, a war and economic turmoil, the issue has necessarily struggled to get attention.

Analysis of consultation responses

Following is a summary of responses to selected questions in the 2016 consultation. 69% of the 159 responses to the consultation were from upper and lower tier local authorities i.e. organisations directly affected by the proposals.

Q1: Do you agree that authorities should record details of their land and property assets in a consistent way on ePIMS?
Responses to this question: 116
Yes: 81 (70%)
No: 11 (9%)
No clear opinion: 24 (21%)

Q5: Do you agree that authorities should record [additional data on surplus land and its potential for release for housing development], in a consistent way on ePIMS?
Responses to this question: 115
Agree: 41 (36%)
Disagree: 29 (25%)
No clear opinion: 45 (39%)

(ePIMS™ is the Electronic Property Information Mapping Service, the central database of Government Central Civil Estate properties and land.)

Q9: Do you agree that authorities should publish procurement data in a fixed format to a central source?
Responses to this question: 122
Agree: 62 (51%)
Disagree: 38 (31%)
No clear opinion: 22 (18%)

Q13: Do you agree that authorities should publish information about the decision making process of retaining, or taking, a service 'in house'?
Responses to this question: 125
Agreed: 41 (33%)
Disagreed: 72 (58%)
No clear opinion: 12 (10%)

Q20: Do you agree that authorities should publish further details of their parking finances and enforcement?
Responses to this question: 108
Agree: 54 (50%)
Disagree: 21 (19%)
No clear opinion: 33 (31%)

Q24: Do you agree that authorities should ensure that their transparency data is clearly signposted and easy to navigate?
Responses to this question: 115
Agree: 98 (85%)
Disagree: 3 (3%)
Already clearly signpost data: 2 (2%)
No clear opinion: 12 (10%)

Q28: Do you consider that the publication of certain local authority data in a standardised format to a central source will facilitate analysis, comparison and benchmarking of that data?
Responses to this question: 106
Agree: 66 (62%)
Disagree: 29 (27%)
No clear opinion: 11 (10%)

Q31: How should compliance with the Code be measured and enforced?
Responses to this question: 91
Enforcement in some form required: 54 (59%)
No need for additional enforcement: 28 (31%)
No clear opinion: 9 (10%)

Q32: Do you agree that the Transparency Code should recommend that authorities publish information about their dealings with small and medium-sized enterprises?
Responses to this question: 93
Agree: 51 (55%)
Disagree: 23 (25%)
No clear opinion: 29 (20%)