Freedom of Information and Data Protection: Guidance for Committee Servicing
- Purpose of this guidance
- Status of this guidance
- Legal background: implications of Freedom of Information and Data Protection for committee work
- Procedural issues
- Content issues
- What should go into reserved agendas and minutes
- Appropriate language and style
- Dealing with corrections
- Further information
- All SOAS committees should have open business and, where necessary, reserved business, to support the goals of improving communication and making more information accessible.
- Reserved business should be limited to items dealing with information which is likely to be exempt if it was requested under the Freedom of Information Act.
- Items should be placed in reserved business if they deal with:
- Commercially sensitive information, e.g. references to ongoing negotiations.
- Information provided in confidence by individuals or organisations outside the School.
- Information whose release might endanger the health or safety of any person.
- Information which might endanger the School's security.
- Legally privileged information, e.g. discussion of legal advice.
- Certain types of personal data about identifiable individuals, e.g. names of examiners.
- Rarely - highly sensitive discussions, which might be impeded if the record of the discussion was to be placed in the public domain.
- Newly created open minutes and agendas (but not agenda papers or tabled papers) should be made available promptly on the intranet, via password protected links from the committee's web page (see When and how to publish committee material).
- Committee secretaries should send files to the Information Compliance Manager, who will add links and arrange for files to be uploaded.
- Open minutes and agendas will normally become accessible on the external website after 12 months, following checking by the Information Compliance Manager (see When and how to publish committee material).
- The language and style of committee minutes should support the goal of making information accessible, e.g. by avoiding personal references where possible.
1. Purpose of this guidance
This guidance explains what the Freedom of Information Act and the Data Protection Act mean for committee work at SOAS. It sets out procedures which will help the School to meet its obligations under the legislation, improve communication within the School, and improve openness and transparency in the School's proceedings, in accordance with the objectives in SOAS's Vision and Strategy for the period 2006-2016. This document is aimed primarily at committee chairs and secretaries, and supplements the general guidance in Role of a Committee Chair and Role of a Committee Secretary.
In this guidance, "agenda" is used in the sense of the list of things to be discussed at a meeting. "Papers", "supporting papers" and "tabled papers" are used to refer to the reports and other papers which may be circulated in advance with the agenda for discussion at the meeting (supporting papers) or tabled at the meeting (tabled papers). Supporting papers are often referred to at SOAS as "appendices", since they act as appendices to the agenda.
This guidance is aimed at committees which form part of the School's formal committee structure, i.e. which appear in the School's Standing Orders. It is not intended for committees, working groups etc which are outside that structure (e.g. ad hoc working groups or committees at departmental level). These will usually deal with very local or technical matters where there would be little to be gained by publishing the information. However, such committees and groups should follow these guidelines if they plan to place minutes or other information on the intranet or external website, as the issues surrounding confidentiality, commercial interests and privacy will still apply.
2. Status of this guidance
This updated guidance was approved by the Clerk to the Governing Body on 13 March 2007.
3. Legal background: implications of Freedom of Information and Data Protection for committee work
SOAS is subject to the Freedom of Information Act and the Data Protection Act. The legislation applies to recorded information held by the School, including the information produced by committee work: minutes, agendas, supporting papers and tabled papers. Consequently:
- Information in committee records can be requested under the Freedom of Information Act, by people who submit Freedom of Information requests.
- Individuals can use the Data Protection Act to request access to personal information relating to themselves in committee records.
- The Data Protection Act has created privacy rights which have to be respected in how we handle committee records. For example, we should not release committee information into the public domain (including the intranet) if that would release personal data about individuals in a way which would violate the Data Protection Act (see Personal data).
The access rights created by Freedom of Information and Data Protection are subject to a number of exemptions and limitations, which serve to balance the right of access against the legitimate interests of the School and other organisations and individuals. Where exemptions apply, committee records do not have to be made available - and in some cases, it would be unlawful or actionable to do so. Generally speaking, the right of access applies regardless of format, and both electronic and paper copies of committee records will be covered.
Information which the School publishes does not have to be produced in response to a Freedom of Information request, as it already accessible by other means. The Freedom of Information Act requires us to include this information in our Publication Scheme, which summarises the information which the School routinely makes available, the formats in which it is provided and whether any charge applies. For example: if we place the open minutes of a committee on the website and record this fact in the Publication Scheme, it is enough to refer persons seeking the minutes to the web source or to the relevant part of the Publication Scheme. We do not have to do detailed searching, as enquirers can search the information themselves. Placing material in the public domain thus reduces the burden of responding to information requests, as well as improving transparency and accountability in the School's proceedings.
Some committees may occasionally deal with information which comes under the Environmental Information Regulations. This is a separate piece of EU-based legislation which creates rights of access to information about the environment - defined broadly to include areas such as pollution, energy, noise, waste/recycling, air quality, environmental policies and plans, and environmental aspects of human health. The access rights and exemptions are broadly similar to those created by Freedom of Information, and are not considered separately in this guidance.
Aside from Freedom of Information, Data Protection and Environmental Information considerations, there is a desire to improve communication within the School which prompt publication of minutes on the intranet and later on the website can support (see What to publish). Improving communication and the flow of information within the School has been identified as a key objective for 2006-2016 in SOAS 2016 - A Vision and Strategy for the Centennial.
4. Procedural issues
The aim is to make as much committee information as possible accessible within the School and outside the School, taking into account confidentiality and privacy requirements, the need to protect the School's interests and those of outside bodies, and the need to limit the workload of committee secretaries. If you are a committee secretary or chair, you can help the School to achieve this by:
1. Structuring your committee's proceedings into open business and, where necessary, into reserved business. Some committees have previously done this in order to make open minutes available on the intranet. It should now be done by all committees in the School's official committee structure, for the purpose of publishing open agendas and minutes on SOASNet.
2. Identifying items for discussion which are likely to generate information in the meeting and the resulting minutes which corresponds to an FoI exemption. These items will fall into certain broad categories (see What should go into reserved agendas and minutes). You should place these items on the reserved agenda for the meeting, and record the discussion in reserved minutes.
3. Placing any other items into the open agenda and open minutes for the meeting. If an item does not match one or more of the categories in section 5.1 (What should go into reserved agendas and minutes), you should normally put it into open business by default.
Doing this will help SOAS to make committee information available on SOASNet, to staff and later to external users of the website. Information which is likely to be sensitive and subject to an FoI exemption will be separated out and will go into reserved business. The remaining non-sensitive information will be dealt with on the open part of the agenda, and open minutes can be released proactively.
In 2007 SOAS reviewed its committee structure, introducing a new committee system from the start of the 2007-08 academic year. Web pages have been created for committees which form part of the new structure (see Committees); minutes for many abolished committees are also available on the web (see Former committees). Open minutes and agendas are normally available to external users of the website one year after the end of the term or summer period to which they relate, and are password protected (restricted to SOAS staff only) before then.
Committee secretaries should ensure that newly created open minutes and agendas are sent to the Information Compliance Manager promptly (see When and how to publish committee material) so that password protected links to new minutes and agendas can be created.
Currently, it is not intended to place on committees' web pages:
- Reserved agendas and minutes.
- Supporting papers/agenda appendices and tabled papers, whether they come under open or reserved business.
Once the changes to committee work outlined in this guidance have become established, the feasibility of providing access to papers relating to the open agendas of meetings will be reviewed. It is currently felt that trying to place these papers on committee web pages would add too much to the workload of committee secretaries. This is based on the following considerations:
- Any exemptions under FoI will ultimately apply to the information in minutes, agendas and papers rather than to the document itself.
- Supporting papers/appendices typically make up about 80 percent of the paperwork generated by committees, by volume. While agendas and minutes are short and are written by the committee secretary, papers are often much longer and are authored by others.
- Papers relating to open business may still contain some information which is exempt (and whose disclosure may be unlawful or actionable), even if most of the paper could be disclosed and the minutes of the discussion are also disclosable. In some cases, the information that should be withheld will amount to individual paragraphs, sentences or words. Making papers available would require secretaries and chairs to review papers in detail to spot possibly exempt information.
- For a given open agenda, some papers may be releasable and others may be have to be withheld because of the information they contain. This would add extra complexity to deciding what files should be placed on the intranet and website.
Information in committee records which is not published on the website can still be requested under Freedom of Information or Data Protection. Requests will be dealt with case by case according to the School's procedures for handling Freedom of Information and Data Protection requests (see Submitting a Freedom of Information or Environmental Information request and Requesting access to personal data). Consequently, some information in reserved business may have to be released if requested (see What should go into reserved agendas).
4.2 When and how to publish committee material
The timing of publication of open minutes on SOASNet will depend on how often your committee meets:
- If the committee meets more than once per term, open minutes should become available on the committee's web page (password protected) after they have been approved at the next meeting of the committee.
- If the committee meets once per term or less frequently, draft open minutes should be agreed by the chair and then circulated by the secretary to committee members for comment. Members should be given two weeks to respond. The secretary should discuss any suggested amendments with the chair. The resulting draft minutes should then become intranet-accessible. The minutes will need to be formally approved at the next meeting of the committee in the normal way. This gives members the opportunity to check the reporting of their comments before the draft minutes are made available widely within the School, given that this will take place before the committee has had a chance to approve the minutes at its next meeting.
Open minutes and agendas should be sent in electronic form to the Information Compliance Manager when they are ready to go on SOASNet. The ICM will put the files on the server, and will add password protected links to the committee's web page. If desired, open agendas can be published before open minutes, as the agenda will be produced first. Open minutes and agendas on the intranet will be reviewed by the Information Compliance Manager, and will normally be made available to external users of the website 12 months after the end of the term or summer period to which they relate.
Regardless of when minutes are published, corrections which are agreed at the following meeting of the committee should only be recorded in the minutes of that meeting, not in the minutes of the earlier meeting (see Dealing with corrections).
5. Content issues
5.1 What should go into reserved agendas
If you are a committee chair or secretary, this section outlines what you should consider when deciding what should go on the open agenda and what should go on the reserved agenda for a meeting, given that the goal is to make as much committee business as possible accessible within and outside the School (see What to publish). Freedom of Information is a useful test here: an item should normally only go on the reserved agenda if it is likely to cover areas that correspond to one or more FoI exemptions. This will ensure that only genuinely sensitive information goes into reserved business. SOAS's Standing Orders provide that agendas shall include reserved items where matters under discussion are of a sensitive nature for reasons of protocol or commercial interest or because they relate to individual or identifiable staff or students (SOAS Standing Orders Annex XIV). These provisions have to be interpreted in light of Freedom of Information and related legislation like the Data Protection Act, which now define the legal framework for rights of access to information held by the School.
Remember: committee chairs and secretaries are not being asked to make a lasting decision that something is exempt under FoI - only that an item may generate information which is likely to be exempt. This can be done by identifying agenda items which fall into the categories described in this section. Whether information in a reserved agenda or reserved minutes is actually exempt will depend on the circumstances at the time, if the information is requested under FoI. For example, information in reserved business might be released because:
- It has ceased to be sensitive: e.g. information which is commercially sensitive is often only sensitive for a limited period.
- The exemption applies but it involves a public interest test, and the public interest at the time favours release of the information.
- When considering the request, we decide that some of the information is not actually exempt and can be released. As previously indicated, FoI exemptions apply to the information itself whereas committee secretaries and chairs are only being asked to recognise and classify broad categories. Processing FoI requests can involve making line by line judgements about specific items of information. For example: a reserved agenda will be a list of the topics to be discussed in reserved business. Some of the information in the list itself may be exempt: e.g. if the agenda refers to commercially sensitive information, or discussion about a named individual in a sensitive context. Other information in the list may not be exempt: the fact that an item was to be discussed may not be exempt, even if exemptions apply to the detailed record of the discussion in minutes. If the reserved agenda was requested, we might have to release certain information in the agenda and blank out other information.
Occasionally, information may come up in the open part of a meeting which should not be released because it is likely to be exempt (e.g. a committee member may raise a point under "any other business"). If this happens, the secretary should place the record of the discussion in reserved minutes, without amending the original open or reserved agendas. The open minutes should indicate that an item has moved to the reserved minutes, and the reserved minutes should indicate the item on the open agenda to which the record of the discussion relates. In rare cases, this may require producing reserved minutes for a meeting where there was originally only an open agenda.
Very often a meeting will only deal with open business, in which case there is clearly no need to produce a reserved agenda or reserved minutes. Similarly, some meetings may only deal with reserved business. In either case, the resulting minutes should record that no open/reserved business (as appropriate) was transacted (see Appropriate language and style).
There are 24 exemptions in the Freedom of Information Act. Not all of them are relevant to SOAS, and only some are likely to be relevant to committee work. These are summarised below. The list is not exhaustive, and in rare situations there may be other exemptions that apply. Committee chairs and secretaries who are uncertain about whether an item corresponds to an exemption, or who think that an item should be withheld which does not match one of these exemptions, should contact the Information Compliance Manager (see Further information).
5.1.1 Commercially sensitive information
"Commercially sensitive information" is information whose release would harm the commercial interests of the School or another organisation. Items which are likely to involve commercially sensitive information should be placed into reserved business, as the information may be exempt under section 43 of the Freedom of Information Act. Examples might be:
- Discussion about forthcoming contracts, negotiations or purchases.
- Details of ongoing negotiations, where release of information might jeopardise the negotiations or the School's bargaining position.
- Sensitive pricing or operational information and trade secrets received from suppliers, tenderers, contractors etc.
- Information which might be of value to a competitor: e.g. information about the School's own commercial activities, or plans to expand in a particular area.
Financial information about the School's income and expenditure will not usually be commercially sensitive. There is a presumption in FoI that financial information about public bodies should normally be accessible in the interests of accountability. However, detailed financial information might be exempt in certain circumstances: e.g. if it would reveal the price charged by a supplier, or the salary of an individual (see Personal information).
5.1.2 Information provided in confidence
If an agenda item involves information which:
- Has been supplied by an organisation or individual outside the School (including another HE institution); and
- The information is not in the public domain; and
- We do not have permission to make the information available; and
- The supplier of the information has indicated that they regard it as confidential; or
- A reasonable person would assume that permission should be sought before making the information publicly available;
Then the item should be placed into reserved business, as it may involve the discussion of information whose release would be an actionable breach of confidence (one for which the School could be sued). This information is exempt from release under section 41 of the Freedom of Information Act.
Confidential information and commercially sensitive information will often overlap. For example, information from a contractor may be supplied in confidence, and also commercially sensitive to the contractor.
5.1.3 Danger to health and safety
Information whose release might endanger the health or safety of any person should always be dealt with in reserved business, as it is likely to be exempt under section 38 of the Freedom of Information Act. This might occur if there was a risk that placing the information in the public domain would lead to an individual receiving threats or harassment, or would aggravate a known medical condition such as a mental illness. Information about the involvement of staff in certain activities or areas of research may have to be placed in reserved business if releasing it would put them in danger from extremist groups.
5.1.4 Danger to security
An item should be placed on the reserved agenda if it involves information whose release in open minutes would be likely to endanger the School's security. For example, if it would:
- Reveal sensitive information about security arrangements, procedures and monitoring systems;
- Compromise IT security systems and protocols; or
- Reveal financial procedures and processes which might make it easier for someone to defraud the School.
This information is likely to be exempt under section 31 of the Freedom of Information Act. However, detailed information like this should not normally be recorded in committee minutes (see Appropriate language and style).
5.1.5 Legally privileged information
Discussions about legal advice provided to the School or another organisation, or communications with the School's solicitors, should always be placed in reserved business. This information is likely to be exempt under section 42 of the Freedom of Information Act
5.1.6 Prejudice to the provision of advice etc
Section 36 of the Freedom of Information Act allows information to be withheld if releasing it would prejudice "the free and frank provision of advice", "the free and frank exchange of views for the purposes of deliberation" or "the effective conduct of public affairs". Under this exemption, it would be valid to place in reserved business high-level policy or strategic discussions (e.g. about the future of the School), if release of the record of the discussions would constrain the discussions or similar discussions in the future. However, this should be done sparingly, as the School would need to make a strong case in order to use this exemption in response to an FoI request. It also more likely to apply to a detailed record of who said what at a meeting than to what was decided at the meeting. Committee minutes should aim to record decisions rather than detailed accounts of discussions (see Appropriate language and style), so good minuting style should mean that we rarely need to use this exemption.
5.1.7 Personal data
"Personal data" means information about any identifiable living individual. Committee records will contain information about committee members and others persons attending meetings (their attendance, reports of their views and opinions, actions upon them), and information about third parties who are mentioned in discussions. Personal data is protected by the Data Protection Act, which makes it unlawful to transfer or release personal information unless certain conditions are met. This is recognised by section 40 of the Freedom of Information Act, which allows personal data to be withheld if its release to a third party would contravene the Data Protection Act.
Some personal information dealt with by committees can go into open business, and some should go into reserved business because releasing it into the public domain (e.g. on the School's website) would violate the Data Protection Act. The Information Commissioner (the body which regulates Freedom of Information and Data Protection) has suggested that public bodies can release certain types of personal information in response to FoI requests, because doing so does not contravene privacy legislation and is in the interests of accountability. This includes:
- Basic information about staff in a work capacity, such as names, job titles, roles and responsibilities and work contact details - much of which SOAS publishes through the Calendar, websites etc.
- Grades of staff (although not salaries, except for more senior staff).
- Decisions and actions taken by staff in an official or work capacity, unless the information is exempt for some other reason.
Information in these categories can be held back in rare situations where releasing it might endanger an individual's health or safety.
Committee members serve on a committee in an official capacity. The guidance above suggests that membership on a committee, committee members' views and opinions expressed at meetings and actions upon them should not be withheld as personal data. This information should go into open business unless it falls under an item where another FoI exemption applies: e.g. a report of a committee member's opinion on a matter which is commercially sensitive. Information about the committee work of members who are not SOAS staff (e.g. student representatives, external members of Governing Body) should be treated in the same way as that of staff members, as they also serve on the committee in an official capacity.
Based on the Information Commissioner's guidance, the following information about third parties can be dealt with under open business and published in open minutes:
- Routine notices of the appointment, departure or promotion of staff (but not details of reasons, discussions prior to the event etc).
- Information about the roles, duties and responsibilities of staff.
- Minor references to individuals which do not convey anything substantive about them.
- Information which is already in the public domain (e.g. on the SOAS website).
- Information about the decisions or actions of staff in an official or work capacity, unless it is exempt for other reasons.
Other personal information which comes before committees should go into reserved business, as releasing it could violate the privacy rights of individuals under the Data Protection Act. The following are examples of information that should always be placed in reserved minutes:
- Sensitive employment-related information about individual staff (grievance, discipline, performance etc).
- The identity of internal and external examiners. This is to respect the long-standing anonymity of the examining process, and the expectation of examiners that their details will be kept confidential. In many cases, there should be no need to identify examiners by name. External examiners' reports can be discussed in open minutes in anonymised form.
- Information about individual students (academic progress, examination performance, discipline etc). However, the committee work of student representatives can be reported in open minutes (see above), as can the official activities of Students' Union officers (appointments of officers are published on the Students' Union website).
- Information about the health, welfare or personal lives of individuals.
Committees will sometimes discuss posts rather than individuals. Information about a post is not necessarily personal data: e.g. discussion about creating a post will not be personal data because no one holds the post. However, information about a post will be personal information if the post can be associated with an individual through sources such as the SOAS Calendar. Whether discussion about a post should go into open or reserved business will therefore depend on the wider context and the factors outlined above.
As personal information can make it difficult to place committee minutes into the public domain, it is good practice to adopt a style of writing which depersonalises minutes as far as possible (see Appropriate language and style).
5.2 Appropriate language and style
The language and style of committee minutes should support the goal of making minutes available where possible. Minutes need to contain enough information to be a useful record of what was discussed and decided at the meeting - and no more than that. Unnecessary or superfluous details could make it more difficult to release minutes on the School's intranet and website, or in response to an FoI request. Information about individuals should be treated carefully and included only when necessary, as we may not be able to make it publicly available for Data Protection reasons (see Personal data). Individuals will usually have a right of access to information about them (see Implications of Freedom of Information and Data Protection for committee work), so appropriate language should be used when referring to individuals.
If you are a committee secretary, this section outlines issues that you should consider when writing agendas and minutes. Following this guidance will make it easier to release minutes (where exemptions do not otherwise apply), and should also reduce the work involved in producing minutes:
(1) Minutes should not be a blow by blow account of who said what at a meeting. This may be appropriate in some situations, but not for School committee meetings. Minutes should be concise and factual, and should aim to record:
- The topics or issues which were discussed at the meeting (without the detail of the discussion).
- What was decided.
- The salient points which led to a decision. This might include a brief summary of the views which were instrumental in the committee making the decision.
- What actions have to be taken, and by whom - summarised briefly in action points.
Items which the committee noted.
- What the committee referred or recommended to another committee.
- Any matters where the committee deferred a decision (and if so, a brief summary of the reasons why).
(2) If it is necessary to record a view or opinion expressed at a meeting (e.g. to understand why a decision was made) - consider whether you need to associate a view with an individual. Often, there is no need to record who expressed a view, only the fact that the opinion was considered by the committee. This suggests a style of "It was suggested that..." or "Several members felt that...", rather than "Professor A said that...". Decisions are ultimately made by the committee as a whole rather than by individuals, so where a view leads to a decision, it is good style to avoid language which suggests that the decision was the responsibility of an individual. The following examples (which might be found in examiners' board minutes) illustrate this:
- "Professor A suggested that candidate B had shown insufficient originality to qualify for a first": this statement is personal data about A and B, and might have to be released to either of them in response to a Data Protection request.
- "It was suggested that candidate B had shown insufficient originality to qualify for a first": this ceases to be personal data about Professor A.
- "Candidate B was awarded a 2:1 because it was felt that he had shown insufficient originality to qualify for a first": this records the decision and the reason for it (assuming the committee agreed with Professor A).
(3) Use job titles rather than personal names, where possible. Except in the initial attendance list, it is good style to use job titles rather than personal names when referring to committee members and third parties. The information will not cease to be personal data (see Personal data), but many people are more comfortable being identified this way in documents which may be published on the web.
(4) "Key words", if used consistently, can help to make minutes more concise and indicate what the committee did:
Noted: acknowledges that the committee was given a particular piece of information. Can also be used to summarise significant points arising from a paper or a discussion which led to a conclusion (e.g. "The committee noted the issues raised...and agreed that"). "Noted" can be used for matters which form part of the formal agenda of a meeting, but will not be discussed unless a member requests this of the chair in advance of the meeting (see Role of a committee secretary for further information).
Received: use this to indicate the formal receipt of a document or information (e.g. "The committee received a report from...").
Considered: use this to indicate that the committee actually discussed a topic or document (e.g. "The committee considered the issue of...").
Approved/agreed: use this to show the conclusion of a committee's deliberations on a matter wholly within its competence (e.g. "The committee agreed that the policy should be approved").
Recommended: use this for matters which the committee has agreed or resolved but which require a decision from a higher body (e.g. "The committee approved the draft policy subject to amendments and recommended its adoption to Academic Board").
Endorsed: use to show the committee's support for a decision made elsewhere.
'Resolved' is also used by Governing Body only in certain contexts (e.g. to amend Standing Orders).
(5) If a meeting only dealt with open business or reserved business - add a note to this effect at the end of the minutes (e.g. "No reserved business was considered at this meeting"). This will avoid confusion and pointless searching if minutes are requested many months or years later.
5.3 Dealing with corrections
Formal corrections to open minutes placed on the intranet or website should continue to be dealt with according to the School's procedures for correcting any type of committee minutes. In other words, where corrections are agreed at the next meeting of the committee as part of the process of approving the minutes of the last meeting, the minutes of the last meeting should not be amended. Instead, the corrections should be incorporated in the minutes of the subsequent meeting. For further guidance on this, see Role of a committee secretary.
Readers of open minutes on the intranet and website may not be aware of this aspect of the School's procedures, so copies of open minutes should have the following statement added at the top of the first page: "These minutes are for information only. Any corrections to the minutes will be recorded in the minutes of the subsequent meeting of the committee".
6. Further information
The Freedom of Information Act and Data Protection Act are complex areas. Further information is provided in the Freedom of Information Staff Guide and in the School's Data Protection web pages. Committee secretaries and chairs should read this guidance in conjunction with Role of a committee chair and Role of a committee secretary, which this guidance is intended to supplement.
Advice on general committee servicing issues is available from the Academic Services Manager (email to email@example.com). For advice on Freedom of Information or Data Protection issues (including the classification of committee business into open or reserved), and issues concerning the addition of minutes and agendas to the website, contact the Information Compliance Manager (email to firstname.lastname@example.org or extension 4150).
Last updated March 2007