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Upper Tribunal orders fresh hearing in dispute over refusal by council to disclose advice of independent person

A local resident who complained about the conduct of a councillor at Stratford-on-Avon District Council over a planning matter has secured a fresh hearing over the council’s refusal to disclose advice given by an independent person.

Cyril Bennis sought all correspondence held by the council relating to the case and this was provided with the exception of the independent person’s advice to Stratford's monitoring officer.

The council refused to provide this citing exemptions under s.36 of the Freedom of Information Act.

Mr Bennis complained to the Information Commissioner’s Office, which agreed with the council, and then later also lost at the First Tier Tribunal, which found the council was correct to refuse part of the requested information because the councillor could expect her comments to the independent person - included with the advice - to remain confidential. It rejected though the council’s case over s.36.

Mr Bennis then went to the Upper Tribunal where Judge Stewart Wright found the First Tier Tribunal had erred and returned the case to it.

Judge Wright said the sole basis for the decision by the tribunal not to release the advice to the monitoring officer had been that a section 40(2) exemption applied because disclosure of information provided by the councillor would not be fair and lawful.

Judge Wright said the ICO had not considered s40(2) and did not give express consideration to whether the councillor had a legitimate exception that her comments to the independent person would not be disclosed.

He said: “The tribunal’s fact finding and reasoning was not sufficient to explain its decision that the s40(2) exemption was met” since this had become in effect the only basis on which it upheld the decision not to give Mr Bennis the information.

Mark Smulian