The Freedom of Information Act 2000 (FoI) continues to surprise and baffle public sector information managers and lawyers. Every month there are an average of 20 decisions made by the information commissioner and eight by the Information Tribunal.
A difficult FoI issue is whether the names of those public sector employees attending a meeting should be disclosed pursuant to an FoI request. The tension 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 tribunal’s decision in The Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Friends of the Earth (29 April) 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 there had been between ministers and/or senior civil servants in the Department for Business, Enterprise and Regulatory Reform (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, note-takers or bystanders. The tribunal had to consider to what extent such names were personal data and so exempt under section 40. At paragraph 101 it summarised the position as follows:a. Senior officials of both the government departments and lobbyists 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 also relate to any spokesperson;c. Recorded comments attributed to such officials at meetings should similarly have no expectation of privacy or secrecy;d. In contrast, junior officials who are not spokespersons for their organisations or merely attend meetings as observers or stand-ins for more senior officials, should have an 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;e. The question as to 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 – 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.
Retirement packagesPreviously we have discussed the cases of Calderdale council (see  Gazette, 5 July, 28) and City of York council who both received separate requests for details relating to the retirement packages of former directors. Both councils refused to disclose the information, stating that the information constituted personal data and so was exempt under section 40. The information commissioner agreed that the disclosure of personal data would, in both cases, be unfair.
In the light of these decisions, it seems surprising that the commissioner recently ordered Doncaster College (19/03/2008 Ref: FS50165354) to disclose the severance payment to its former principal following a disciplinary investigation. Again the issue is whether there is an expectation of privacy on the part of the subject and if that expectation is reasonable.
Doncaster College pointed to a confidentiality clause in the compromise agreement between itself and the former principal. This was similar the one relied on by City and County of Swansea (02/10/2006 Ref: FS50071454) to refuse to disclose the severance payment to its former chief executive. In that case, the commissioner agreed that the section 40 exemption applied.
The distinguishing feature in this decision was that the principal would have known about the Learning and Skills Council’s guidance for colleges on the production of accounts. This 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 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.
In February, the Information Tribunal ruled for the first time that legal advice should be disclosed on grounds of public interest despite the section 42 exemption for legal privilege (see Mersey Tunnel Users Association v Information Commissioner and Merseytravel (15 February 2008)).
In April, the tribunal shed more light on this difficult exemption. In Foreign and Commonwealth Office v Information Commissioner (29 April 2008) the request concerned the legal advice received by the FCO about the non-payment of pensions by the Zimbabwe government to its former employees resident in the UK. The critical issue was whether the UK government might have a legal responsibility for the payment of such pensions or might be liable in tort for losses suffered by unpaid pensioners.
The tribunal decided that, on the facts of this case, it was not in the public interest to disclose the legal advice. It went on to state that there can be no hard and fast rules as to when advice should be disclosed. The reason for disclosure must amount to more than satisfying curiosity as to what advice the public authority has received.
The most obvious cases would be those where there is reason to believe that the authority is misrepresenting the advice which it has received, where it is pursuing a policy which appears to be unlawful, or where there are clear indications that it has ignored unequivocal advice which it obtained. The public interest in disclosure is weak where it simply enables the requester to understand better the legal arguments relevant to the issue concerned. It is weaker still where there is the possibility of future litigation in which those arguments will be deployed.
Over the years, there have been many decisions of the commissioner and the tribunal on the section 43 (commercial interests) exemption. They have espoused the general rule that the price paid for goods or services by a public authority should be disclosed as being in the public interest. It may therefore come as a surprise to hear that the BBC (17/03/2008 Ref: FS50086077) was recently successful in withholding the cost of its new weather graphics system on the grounds that disclosure would prejudice its and its suppliers’ (in this case a company called Metra) commercial interests.
On the face of it, this decision seems to fly in the face of the general principle that the public have a right to know how their money is being spent. But in agreeing with the BBC, the commissioner gave weight to the fact that the system under discussion does not have an off-the-shelf price that is generally available. Rather, in each case, purchasers are likely to enter into detailed discussions about which features of the current system are required together with any additional new features. This, together with a number of other factors, will affect the price at which Metra offers the system. The commissioner agreed with the BBC that disclosure of the price paid in isolation is likely to place Metra at a disadvantage when negotiating other contracts. Potential customers will try to use this price as a bargaining tool, without being aware of the other factors taken into account when the BBC selected Metra as its supplier.
The commissioner was also satisfied that disclosure of the information would, or would be likely to prejudice, the BBC’s commercial interest.
The commissioner felt that the BBC should not be placed at a disadvantage against its commercial rivals not subject to FoI, by having to disclose information about costs, especially where such costs would not add to the public understanding significantly, and where value-for-money controls and information are already available through other mechanisms.
Ibrahim Hasan is also a director of Act Now Training