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Complaint no. LA/G/435 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor William O’Rourke of Glasgow City Council

1. Complaint number LA/G/435 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor William O'Rourke ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, the Confidentiality Requirements set out in section 3, and the provisions on Lobbying and Access to Councillors contained in section 6.

3. The person complaining ("the complainant") alleged that the respondent supplied copies of confidential correspondence to a third party in order to facilitate a complaint to the Standards Commission for Scotland and thus breached the terms of paragraphs 3.15 and 3.16 of the Code as regards Confidentiality. The complainant also alleged that the respondent consistently declined to meet with constituents in regard to their concerns over access to amenity land in Minmoir Road, Glasgow and thus breached the terms of section 6 of the Code as regards Lobbying and Access to Councillors.

4. The respondent has represented the Crookston Ward since 2000. Prior to that year the complainant's late husband was the local member but was unseated after the respondent won the nomination from the Labour Party.

5. The first allegation of the complaint was that the respondent supplied copies of confidential correspondence to a third party in order to facilitate a complaint to the Standards Commission for Scotland, and thus breached the terms of paragraphs 3.15 and 3.16 of the Code.

6. Paragraph 3.15 of the Code raises a presumption in favour of Council papers being available to the public and this principle is in accord with current freedom of information and human rights legislation. The Code does however recognise that there are occasions when councillors are required to treat documents relating to the Council in a confidential manner and it is a breach of the Code to fail to observe such a requirement. Confidentiality will typically arise where papers deal with matters of a contractual, personal or sensitive nature. Data protection principles also require to be observed.

7. Paragraph 3.16 extends the scope of the confidentiality requirement to 'information of a private nature which is not yet public or which would perhaps not be intended to be made public'. The Code makes specific reference to the use of information for personal or political advantage or to discredit the Council.

8. The complainant in this case took the view that the provision of letters to a neighbouring proprietor who sought to complain about the complainant's late husband using his position as a councillor to intervene in a private dispute, breached the confidentiality requirements of the Code and were intended to discredit her late husband. In broad terms the papers disclosed the history of contact between residents, elected members and Council officers in regard to the privacy and maintenance of amenity land close to the complainant's home.

9. The communications originating from the complainant and her neighbours, sought action by the recipients, in their roles as councillors or senior officers and it was reasonable to presume that they would have been further distributed in whole, or in part, to appropriate colleagues. I did not consider that in themselves they could be regarded as inherently private, particularly in the absence of any specifically expressed wish or requirement for confidentiality on the part of their authors.

10. The letters passing between councillors were of an internal nature and not specifically intended for publication beyond the principal addressee and others named on the distribution list. I did not consider that they were helpful in advancing the complaint lodged by the respondent's constituent, and their release could have been construed as seeking to demonstrate the involvement of the complainant's late husband in an issue which was essentially a private matter. Nonetheless the status of the documents and the quality of confidentiality attached to them had to be viewed in the wider context in which they were received and considered. To impute a motive - improper or otherwise - to the release of a selection of papers drawn from the much larger parcel of material, would in my view be going too far, and could not reasonably support a conclusion that the confidentiality provisions of the Code had been breached.

11. Without redaction, I considered the release of the correspondence referring to a third party and her family as potentially inconsistent with data protection principles. This was a matter, however, which fell outwith the scope of the Code.

12. In regard to the second allegation, namely the refusal of the respondent to enter into further discussions with the complainant and others, I am satisfied that the respondent made a judgement on the basis of investigation and advice from senior Council officers. The legal position constrained the Council from taking enforcement action as regards the stopping up of privately owned gates/fences, the occupier concerned had been advised by letter as to the absence of a right of passage over the amenity land and interference with planting, and there was no physical evidence of significant passage over the ground. The respondent had explained this in correspondence to the complainant and it was unclear what other result could have been achieved by a meeting. I did not consider, therefore, that the respondent had breached the terms of the Code in regard to Accessibility to Councillors and I found accordingly.

13. Having considered the information that arose from my investigation, I concluded that Councillor William O'Rourke had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
10 November 2006