If there is one thing everyone using FOIA is used to, it is the idea that the personal data (names, contact details) of ‘junior civil servants’ will be redacted out of the disclosed information, applying the section 40(2) personal data exemption. Unless there is a good reason not to. But what if everyone is wrong? Is redacting junior civil servants just a personal data shibboleth?
No.
Turns out that everyone has been working on the basis that there is usually no good reason to release the personal data of junior civil servants because, well, there is no good reason to release the personal data of junior civil servants. That is the effect of the Upper Tribunal’s decision in Cox v Information Commissioner & Home Office [2018] UKUT 119 (AAC) (Cox v ICO & HO). The request in Cox concerned, in part, the names of Home Office civil servants who had met counterparts in Eritrea in relation to immigration policy. Three names were redacted, being a Grade 6 and two Grade 7 officials, on the basis that condition 6(1) of Schedule 2 to the DPA was not met. As Judge Wikeley explains at [23], Grades 1-5 are classified as the senior civil service (the name of one of which was released).
Perhaps surprisingly, as Judge Wikeley noted at [32], this was the first time the Upper Tribunal had had to consider the release of civil servant names in a routine FOIA context (as opposed to specific allegations or wrongdoing allegations). The ICO guidance, and the FTT decisions, indicate that – less surprisingly – it really all depends. The submissions for Mr Cox were that there was always a legitimate interest in knowing the identity of public officials exercising public power. This, as Judge Wikeley pointed out, was hard to reconcile with the express disavowal (rightly, he thought given the authorities) on the part of the Mr Cox of any purported presumption in favour of disclosure: at [41]. In the personal data context, the assumption is, if anything, to the contrary and a careful balancing exercise has to be undertaken by reference to the well-established Goldsmith principles; approved by the Northern Ireland High Court in Re Doran’s Application for Judicial Review [2017] NIQB 24. (Unaccountably, these still do not appear to be known as the ‘Knight principles’. But there is still time.) That balance is different to the public interest balance under section 2 FOIA: at [42]. Moreover, both Upper Tribunal and CJEU authority was cited for the proposition that the legitimate interests on the side of disclosure could, often would, be those of the requestor personally and not wider public interests: at [43]-[44]. A legitimate interest does not appear simply by virtue of the data subject’s employer: at [46].
Whether the balance favours disclosure or not all depends. But the ordinary principle that it is senior civil servants who carry the can in terms of responsibility and accountability was a conclusion which the Upper Tribunal was not prepared to disturb: at [46].
An odd but practically important coda appears from the decision in Cox. It is this: how is the Tribunal to deal with a desire on the part of a litigant to use information provided in the open bundle which, taken with other material he has, will reveal the personal data of third parties (and indeed the very third parties whose names have just been withheld under section 40)? The First-tier Tribunal had refused Mr Cox permission to use and disseminate that open information, in reasoning which had treated the request somewhat akin to a FOIA request.
The Upper Tribunal agreed with Mr Cox that the open justice principle was in play in relation to material referred to in open proceedings, that the default position was that any such material was open to further use, but that it was always subject to other directions on the part of the Tribunal: at [65]-[69]. Judge Wikeley was, quite rightly, critical of the Tribunal for having dealt with the matter as thought it were the subject of a FOIA appeal (over which it would have had no jurisdiction given the absence of a decision notice on the issue) and critical of the parties for not having addressed the point through the correct procedural route, namely a rule 14 application: at [70]-[71]. However, this was not, in his view, a material error of law because had a rule 14 application been made the Tribunal would have been bound to redact the information which identified the three civil servants whose names had otherwise been withheld under section 40, undermining its substantive decision: at [73]-[74]. A reminder then to ensure that you follow the proper procedures, but that if something goes wrong, the Upper Tribunal will look at the substantive justice of the matter. Which is not a bad place to end up.
Rupert Paines acted for the Information Commissioner.
Christopher Knight