At the 11KBW Information Law seminar last week, I mentioned the imminent Tribunal decision in the GM Freeze case, which will consider how the term “emissions” is to be construed for EIR purposes. On a related note, readers may be interested to know that the ICO last week issued a decision notice requiring Ofcom to disclose information about electromagnetic radiation from ethernet power line adaptors, on the grounds that this fell within the definition of “information on emissions” under the EIR. Read the DN here.
Those involved in requests for information about compromise agreements between public authorities and departing senior employees will wish to pay careful attention to the Tribunal’s very recent decision in Gibson v IC and Craven District Council (EA/2010/0095). In this case, the Tribunal ordered disclosure of information insofar as it related to the use of public funds; the remainder could be withheld on the basis of s. 40 FOIA. This provides an illuminating contrast with other s. 40 FOIA cases about compromise or severance agreements, such as Wilson v IC (EA/2009/0082) and Waugh v IC and Doncaster College (EA/2008/0038).
The Tribunal found that all information in the requested compromise agreement was personal data. It agreed that generally information on compromise agreements should not be disclosed – but, as ever, context is important. Here the case concerned a very senior employee; further, the Council’s ex-CEO left office with the Council finances “in disarray”, but the auditor had – ultimately – approved the settlement paid under the compromise agreement.
As to the lawfulness of disclosure, it observed that this term is not defined in the DPA, but “seems to mean that information may not be processed when the law does not allow it, as opposed to when two parties have entered into a voluntary agreement not to disclose the information”. In other words, a mere contractual agreement as to confidentiality does not suffice to render disclosure “unlawful”.
As to the fairness of disclosure, the Tribunal distinguished between information on the use of public funds and other information. It noted that compromise agreements are “personnel matters”, generally attracting a strong expectation of privacy. Although “personnel” information comes into existence as part of the employee’s professional (rather than personal) activities, some of it (such as pension contributions and tax arrangements) are “nevertheless inherently private and would attract a very strong expectation of privacy and protection from the public gaze”.
Again, expectations of confidentiality were not decisive on the question of fairness: the Tribunal did “not regard it as reasonable for the ex-CEO (or the council) to expect that certain information relating to the use of public funds, to be hidden from public gaze by virtue of a confidentiality clause agreed between them”. Nor was the Tribunal impressed by submissions that disclosure would have a substantial adverse impact on the ex-CEO’s employment prospects or personal life.
Ultimately, fairness and condition 6 from Schedule 2 DPA were determined in similar terms: the Tribunal found that “the legitimate interests of members of the public [in transparency] outweigh the prejudice to the rights, freedoms or legitimate interests of the ex-CEO only to the extent that the information concerns the use of public funds”.
The British Medical Association has expressed concern this week about the Health and Social Care Bill – in particular, about its approach to data protection and the sharing of patients’ medical information. The Bill proposes a new “information standard” for the NHS which, according to the BMA, shows that “the Government has decided to place its desire for access to information over the need to respect patient confidentiality”. The new law would empower the Secretary of State to obtain such information as he considers it necessary to have; it would also widen the access to medical information by the NHS Commissioning Board, NHS Information Centre and local authorities. More detail on the proposed changes can be found in articles in the Daily Telegraph here, and the Guardian here.
The BMA wants to see the Bill amended: “so that it enshrines the need for explicit patient concent to any disclosure of information, unless the information has been properly anonymised or there is an overriding public interest.” The Department for Health, on the other hand, is confident that the proposals would preserve confidentiality and comply with the data protection law. Presumably, the Department means data protection law as implemented in the UK. At the 11KBW Information Law Seminar last week, I discussed the tension between the narrow approach to data protection that has prevailed under UK common law since Durant, and the considerably wider approach taken at a European level (and favoured domestically by the Information Commissioner).
On this subject, there is a very interesting report on Amberhawk this week, available here. This sets out in some detail the European Commission’s concerns about the UK’s apparently “bare minimum” approach to implementing its data protection obligations. It’s not yet clear what the Commission will do about this, but it appears to be only a matter of time before negotiation or confrontation on this issue comes to a head.
Roy Greenslade has posted a very interesting piece this afternoon on his blog on the Guardian website about a purported instance of “contracting out” of FOIA and DPA rights. According to his piece, Cheshire West and Chester Council has signed a compromise agreement with a former employee in which he or she contracts not to make requests to the Council under FOIA or the DPA (the EIR is not mentioned). The Council is confident that these provisions are effective. The ICO takes the opposite view – I suspect it will not be alone in doing so. Click here to read the piece.
The FOIA update paper given at last week’s 11KBW Information Law Seminar provides a roundup of recent caselaw in a few of the most common areas of Tribunal litigation.
One is commercially sensitive or confidential information: in particular, Veolia and its aftermath.
Another is information on planning applications and property developments: in particular, those cases subsequent to South Gloucestershire, namely Bristol City, Bath & North East Somerset and Elmbridge.
A third area is personal data: here the recent cases of Dun, Bryce, Ferguson and Ince have all – like the cases mentioned above – been covered in Panopticon posts. Two others to take note of, however, both in the context of public sector pay (other than salaries).
One concerns bonus payments to public sector employees. Davis v IC and Olympic Delivery Authority (EA/2010/0024) saw the Tribunal distinguish between bonus information and performance assessment information. It ordered disclosure of certain information relating to the bonuses of senior employees of the ODA: the maximum performance-related bonuses to which the chief executive and communications director were contractually entitled, and the percentage of the maximum available bonus actually paid to certain other members of senior management. The Tribunal decided, however, that details of the performance targets which individuals failed to hit to 100% satisfaction should not be disclosed.
The other recent case on the personal data exemption is Pycroft v IC and Stroud District Council (EA/2010/0165). The context was an auditor’s report which observed that the local authority’s former Strategic Director of Housing “did not ensure that staff had taken ownership of managing the budgets”. The applicant requested the details of this Director’s early retirement package. The Commissioner found that disclosure of this information would not be fair, and the Tribunal agreed. It should be noted by those dealing with requests for information about payments to allegedly poorly-performing public sector employees.