The terms “Open” and “Closed” refer to the freedom of information status of the business items under discussion at committee:
An open item is one over which there would be no issues for the University in releasing the information to the public in response to a freedom of information request.
A closed item is one that contains information that could be withheld from release to the public because an exemption under the Freedom of Information Act 2000 applies. If an exemption is deemed to apply, the application must be capable of justification and the duration of the exemption should be estimated. Both exemption and duration should be noted in the minutes and/or paper and/or agenda to which the exemption applies. A closed item should be recorded by closing as little of the formal record as possible. A paper may be closed but the minute and agenda entry may be able to be kept open. Where closed items exist these must be indicated so as not to mislead the public. Even if an item is closed you have an obligation, should a member of the public request access, to check as to whether either part or full access could be granted.
The exemptions of greatest potential relevance to the University’s business are:
Section 22 Information intended for future publication.
Section 36 Prejudice to effective conduct of public affairs (Release of the information would, or would be likely to, inhibit — (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation, or (iii) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs).
Section 38 Health and safety
Section 39 Environmental information (Information is exempt information if the public authority holding it — (a) is obliged by regulations under section 74 to make the information available to the public in accordance with the regulations, or (b) would be so obliged but for any exemption contained in the regulations).
Section 40 Personal information
Section 41 Information provided in confidence (Information is exempt information if — (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person).
Section 42 Legal professional privilege (Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is exempt information).
Section 43 Commercial interests (Information is exempt information if it constitutes a trade secret or if if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).
These are not the only exemptions under the Freedom of Information Act 2000. For a full list of exemptions please see the text of the Act available through the website of the Office of Public Sector Information www.opsi.gov.uk.
Try to write the agenda so that it can all be kept open. Even if some papers are closed, try to describe them on the agenda in a way that allows the entire agenda to be kept open.
If all of the agenda cannot be kept open create a second, closed agenda as a separate document to contain only the closed items. The open agenda should contain the open items and reference to the items which are closed.
Even if the agenda entry is open, the paper may be closed. In this case, the agenda must clearly indicate that the paper is closed so that it is not accidentally released to anyone without authorisation.
There may be occasions on which a paper is closed and its agenda and minute entry are also closed.
Data protection legislation restricts the transfer of personal data outside the European Economic Area, a principle which may be breached by online publication of committee members’ names within minutes. It is good practice therefore to advise committee members that their names may be published online and give them the opportunity to opt out of this before publication. An example text which you can attach to a committee agenda is: "The agenda, papers and minutes of this committee may be made publicly available on the University website or in response to freedom of information requests. Committee members who object to their names being made available in this way must notify the committee secretary within X weeks of this meeting".
The secretary of a committee should be responsible for determining whether a paper is open or closed on the basis of information provided by the author of the document. Caution must always be exercised in applying an exemption as the public interest is always weighted in favour of disclosure.
The information to be provided by the author should be sufficient to enable the secretary of a committee to determine:
If any freedom of information exemptions apply and if so, which.
How long the exemptions need to apply.
Try not to refer to individuals unless necessary. Where possible, refer to job titles rather than names.
Write minutes clearly and concisely. Introduce the subject briefly, summarise the major points and record the decision reached.
Aim to write all minutes so that they can be open, even if the matter discussed was closed.
If everything cannot be recorded in the open minutes, create a separate document for closed minutes to contain only those items that cannot be open. Refer to the closed items in the open minutes, giving the exemption(s) under which the items are being withheld and the duration of the exemption(s).
Once an exemption has expired, information must be released, especially if a redacted version of a document has been published on the internet. The redacted version must be replaced immediately with an open version. A nominated individual should be assigned responsibility for ensuring that this is undertaken for their committee.