The right to know

Requests under the Freedom of Information Act 2000 (FOI) for details about staff employed by public authorities require a careful balancing of the individual's right to privacy with the public's right to know.

If a third party makes an FOI request for information about staff working for a public authority, s.40 provides an exemption from disclosure, but this would only apply if disclosure of the information would lead to a breach of one of the Data Protection Act (DPA) principles.

The main DPA principle to be considered is the first one: information must be processed fairly and lawfully and the processing must be justified in accordance with sched.2 (and sched.3 in the case of sensitive personal data) of the DPA.

In deciding whether or not this principle would be breached, a public authority must look at the nature of the information being requested, the expectation of privacy of the staff member, and whether that expectation is reasonable.

Remuneration packages

The majority of FOI requests for staff information relate to salaries and remuneration packages. The Information Commissioner's previous position was that the more senior an individual is within an organisation, the more the public has a right to know what they do, and precisely how much they get paid for doing it (see the decision in Corby Borough Council (Ref: FS50062124 25/8/05)).

In 2008, we saw a change in the Commissioner's approach to such requests. His recent decisions state that exact salaries do not have to be disclosed, even of the most senior public authority staff.

In January 2008, the Information Commissioner ordered the BBC (Ref: FS50067416 8/1/08) to disclose the name of the highest earner at BBC Northern Ireland and their pay band. However, he agreed with the BBC that it would be unreasonable to disclose the exact salary. The individual had a reasonable expectation of privacy.

The same decision was made by the Commissioner involving a request to himself for the job titles and wages of his five most senior staff members (Information Commissioner (Ref: FS50163927 8/01/08)).

Why the change in approach?

Some may say that this change of approach is due to complaints from public authority staff that their salaries are being singled out for scrutiny (and sometimes ridicule) by the media, when their counterparts in the private sector are not subject to the same levels of scrutiny (their employers not being covered by FOI).

What is interesting about the latter decision is that it shows once again that the Commissioner himself can get it wrong. Not only did he issue a refusal notice outside the 20 working day time limit, but also the notice did not state any exemption or clarify what information was being withheld. This is surprising, since there is a detailed guidance note on the Commissioner's own website setting out how to draft a refusal notice that complies with the requirements in s.17 (www.ico.gov.uk). A case of 'do as we say, not as we do' perhaps?

A number of Commissioner decisions have concerned requests for details of the retirement packages of former directors or chief executives. For example, Calderdale Council (Ref: FS50074995 16/5/07) and City of York Council (Ref: FS50123921 15/5/07) both refused to disclose the information, citing the exemption under s.40 (personal data). The Commissioner agreed that the disclosure of personal data would be unfair to the individuals and, consequently, be a breach of the DPA principles. In both cases the Commissioner took account of the seniority of the subjects and their role, but still ruled that their privacy should be protected.

One has to ask, what is the difference between disclosure of salary bands of senior officers, and disclosure of their retirement packages? Surely in both of the above cases the former directors were sufficiently senior and also made decisions involving the spending of public resources.

The public has a right to know not just what they were paid during their employment, but also their retirement or severance package '“ even if it is just in the form of an overall figure rather than a detailed breakdown.

Privacy around severance payments cannot be guaranteed though. Recently the Information Commissioner ordered Doncaster College (Ref: FS50165354 19/03/2008) to disclose the severance payment to its former principal, pursuant to a compromise agreement following a disciplinary investigation. Again, the issue was whether there was an expectation of privacy on the part of the subject and whether that expectation was reasonable. The College pointed to a confidentiality clause in the compromise agreement between itself and the former principal. The clause was similar to one successfully relied upon by City and County of Swansea (Ref: FS50071454 2/10/06) '“ to refuse to disclose the severance payment of its former chief executive. In that case, the Commissioner agreed that the s.40 exemption applied.

A matter of public record

The distinguishing feature in this decision was that the college principal would have known about the Learning and Skills Council's 'Guidance for Colleges on the Production of Accounts'. The guidance contains an express requirement on colleges to disclose the amount of severance costs for each year. The accounts of the college, to be published at a later date, would therefore contain details of the former principal's severance payment and would be a matter of public record accessible to anyone.

Therefore, the Commissioner did not consider that disclosing the information at the time of the request would have been unfair or that the principal's expectation of privacy was reasonable.

Does FOI require the names and contact details of staff to be disclosed? The Information Tribunal decision, involving a request from a Guardian journalist (Ministry of Defence v Information Commissioner and Rob Evans (Ref: EA/2006/0027 20/7/07)), provides the answer. It involves a request for a staff directory, which included the names and contact details of individuals working for the Defence Exports Services Organisation.

The Tribunal ruled that public authorities could only withhold the names of staff who are particularly junior, who are not immediately responsible for the requested information, and as long as their name is not already available elsewhere (or would be expected to be through their performance of a public-facing duty).

Names can also be withheld if there is a clear and demonstrable threat to a staff member's health and safety.

Meetings and correspondence

Another difficult issue is whether the names of public authority staff attending a meeting should be disclosed pursuant to an FOI request. The tension again is between the individual's right to privacy and the public's right to know how those employed by the public sector are carrying out their official roles. The Information Tribunal decision in The Department for Business, Enterprise and Regulatory Reform (BERR) v Information Commissioner and Friends of the Earth (Ref: EA/2007/0072 29/4/08) gives further guidance on this point, including whether the names of private sector employees should be disclosed.

The request was for information about meetings and correspondence between ministers and/or senior civil servants in BERR and employees from the Confederation of British Industry (CBI). Some of the documents relevant to the request included references to individuals who had attended such meetings as spokesmen or as note-takers or bystanders. The Tribunal had to consider to what extent such names were personal data and so exempt under s.40. It summarised the position as follows:

a) senior officials of both government departments and lobbyist attending meetings and communicating with each other can have no expectation of privacy;

b) the officials to whom this principle applies should not be restricted to the senior spokesperson for the organisation. It should apply to any spokesperson;

c) recorded comments attributed to such officials at meetings should similarly have no secrecy attached to them;

d) in contrast, junior officials, who are not spokespersons for their organisations or who merely attend meetings as observers or stand-ins for more senior officials, will have a legitimate expectation of privacy. This means that there may be circumstances where junior officials who act as spokespersons for their organisations are unable to rely on an expectation of privacy to argue that their information should be withheld;

e) whether a person is acting in a senior or junior capacity or as a spokesperson is one to be determined on the facts of each case;

f) the extent of the disclosure of information in relation to the named official will be subject to the usual test, i.e. is disclosure necessary for the applicant to pursue a legitimate interest, and, even if it is, is the disclosure unwarranted due to the harm caused to the individuals by disclosure?

This will largely depend on whether the additional information relates to the person's business or professional capacity or is of a personal nature unrelated to business.

Requests by staff

It is important to remember that staff can not only be the subject an FOI request, they can also make a request themselves to their employer. Many local authorities have been or are currently going through the Single Status and Job Evaluation programmes. Some staff inevitably feel aggrieved at subsequent decisions taken about their role and revised salary. FOI is sometimes used to in order to obtain more information to enable them to challenge such decisions.

In a decision involving the London Borough of Southwark (Ref: FS50078603 6/6/07), the complainant asked the Council for information about the criteria it used to determine the appropriate grades for its staff positions. The request required disclosure of information about the Council's application of the Hay job evaluation scheme. The Council withheld the requested information citing the s.43 exemption '“ that disclosure would prejudice the commercial interests of the Hay Group. The Commissioner decided that the information should be released. He took account of the fact that the Hay Group did not object to the information being disclosed and that the value of such disclosure was limited to competitors, unless they received training from Hay. In any event, it was in the public interest to disclose such information to allow staff to understand decisions which affect their lives and to challenge them.

Disclosure would also allow them to see the integrity of the decision-making process.

The Freedom of Information Act 2000 has led to a big increase in requests for information about individuals. There is no blanket exemption for requests for staff information. Each request will have to be examined on its own merits and the provisions of the Act will have to be applied. Public sector employees and those whose personal information is held by public sector organisations can no longer expect total confidentiality. In certain circumstances their information will be disclosed to the outside world. This seems to be the price of working for the public sector.