The question of whether and to what extent the personal data of public servants should be disclosed under FOIA is often a difficult one for public authorities to resolve. In the MPs’ expenses cases, the Commissioner and the Tribunal took a firm view that the legitimate interests of the public in accessing information relating to expenses outweighed any claims to privacy which the MPs might have. More recently, the Secretary of State has issued a code of recommended practice to local authorities inviting publication of salaries of senior officers (see further this earlier post on the code). But what level of data transparency is required if the personal data in question does not concern the expenditure of public monies but rather the way in which the private lives of public servants may intrude on their public duties? How does the s. 40 exemption play out in those circumstances? It was precisely these questions which the Tribunal was called upon to consider in the recent case of Greenwood & Bolton Metropolitan Borough Council v IC (EA/2011/0131).

In Greenwood, a request was made for disclosure of information revealing the declarations of interest which had been made by officials employed by Bolton MBC. The request was not limited either by reference to the nature of the interests in question or the seniority of the individual officers, although as it happened the relevant register of interests only recorded declarations from principal officers and above. The withheld information by its very nature comprised information about what individual officers got up to when they were not at work and, as such, was inherently private information. However, it was private information which plainly had a bearing on the discharge of the officers’ duties, hence its inclusion on the register of interests.

In a nuanced judgment, the Tribunal concluded that: the names, departments, sections and job titles of all officers who had made entries on the register should be disclosed and that, in addition, in relation to chief officers, information revealing other professional commitments (e.g. consultancies) should be disclosed but that the remainder of the information should be withheld. In reaching these conclusions, the Tribunal rejected arguments advanced by the Council that disclosure of any of the data would have a ‘chilling effect’ on the system of declarations. In its view, officers would still be inclined to make declarations, the disclosure notwithstanding, particularly because of the ‘auditor effect’, namely ‘disclosure would enable members of the public to scrutinize the information and challenge any inaccuracies or omissions’ which was ‘likely to add frankness in declaration’ (para. 30). However, it accepted that withholding the bulk of the requested information was justified. This was particularly in view of the facts that disclosure of some of the information would be likely to cause substantial distress and would be extremely intrusive into the lives of officers and, further, disclosure would interfere with the private lives of third parties involved in the interest in question (paras. 33-43). The decision effectively leaves the public in a situation where it knows that an officer has identified a potential conflict of interest but not why the conflict arose, unless that is the conflict relates specifically to the professional commitments of a chief officer.