The Freedom of Information Act and Environmental Information Regulations are the dominant statutory regimes for public transparency, but they are of course not the only ones. A good example is the regime under the Local Government Act 1972 (as amended), particularly sections 100A-K. Those provisions govern public access to local authority meetings, as well as the public availability of minutes, reports, background documents and so on for such meetings, subject to provisions for exempt information (Schedule 12A).

A recent judgment of the Admin Court (Cranston J) in a planning matter, Joicey v Northumberland County Council [2014] EWHC 3657 (Admin) illustrates the importance of compliance with that regime for public access to information.

The claimant challenged the local authority’s grant of planning permission for a wind turbine. One of his grounds was its failure to make available the noise assessment report which had been considered in the granting of permission, contrary to the provisions of the 1972 Act referred to above, and also in breach of the council’s Statement of Community Involvement.

The Council had argued that the report, being on its files, was duly available. Cranston J disagreed: “it was not open to inspection by members of the public since the files were in such a state that the duty officer on 1 November fetched what must have been a Brackenside file, but not one with the report. If the Council cannot organize its files in a way which means the duty officer is able to produce a particular report within a reasonably practicable time the report is not available” (paragraph 44). This is a compelling warning to public authorities to make sure relevant information is properly (rather than technically or hypothetically) available where required.

Here is an important passage from Cranston J’s judgment about the practical and democratic value of transparency (paragraph 47):

“… Right to know provisions relevant to the taking of a decision such as those in the 1972 Act and the Council’s Statement of Community Involvement require timely publication. Information must be published by the public authority in good time for members of the public to be able to digest it and make intelligent representations: cf. R v North and East Devon Health Authority Ex p. Coughlan [2001] Q.B. 213, [108]; R (on the application of Moseley) (in substitution of Stirling Deceased) v Haringey LBC [2014] UKSC 56, [25]. The very purpose of a legal obligation conferring a right to know is to put members of the public in a position where they can make sensible contributions to democratic decision-making. In practice whether the publication of the information is timely will turn on factors such as its character (easily digested/technical), the audience (sophisticated/ ordinary members of the public) and its bearing on the decision (tangential/ central)”.

Here, the dense and technical report had not been made available with sufficient time for it to be digested acted upon.

Cranston J was also clear that, had the information been made properly available, it could have made a real difference. Officers could have been prompted to rethink certain points, and decision-makers could well have been swayed: the decision was made by “a committee of politicians where the vote was not whipped. It is a very bold person who will hazard that in such circumstances a particular result is inevitable”.

Relief was therefore appropriate: “the claimant will be entitled to relief unless the decision-maker can demonstrate that the decision it took would inevitably have been the same had it complied with its statutory obligation to disclose information in a timely fashion” (paragraph 51).

The Council’s decision was therefore quashed on the transparency ground (among others). See paragraph 59:

“Here the claimant had standing to challenge a decision of his local Council. By denying him timely access to information to which he was entitled it limited his full participation in democratic decision-making. The fact that he might not be immediately affected by the proposal where he lives is not a sufficient reason to deny him the remedy he seeks. This was a serious breach by the Council of its statutory obligations. An additional factor bearing on the exercise of discretion in this case is the Council’s own behaviour in the back-dating of the website to when the WSP noise assessment was available to it. Although it did not have any consequences in the circumstances of this case, it had the potential to mislead members of the public about their right to know and to use the information disclosed. In all there is no reason to deny the claimant his remedy.”

The case is a powerful illustration of the practical value of transparency and public participation, and of how failure to comply with laws aimed at those ends can really bite.

Robin Hopkins @hopkinsrobin