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”.