APPLICATION OF S. 40 TO PUBLIC SECTOR RECRUITMENT PROCESS – BOLTON V IC & EAST RIDING YORKSHIRE COUNCIL

March 28th, 2012 by Anya Proops QC

The First-Tier Tribunal has recently considered the application of the personal data exemption to a local authority recruitment process. In Bolton v IC & East Riding Yorkshire Council  (EA/2011/0216), the applicant requested disclosure of information concerning the appointment to the authority of a new CEO, Mr Pearson. The tribunal construed the request as amounting to a request for disclosure of information relating to the recruitment process as a whole, rather than a request merely for disclosure of information relating to Mr Pearson. On this wide construction, the information in issue included: the content of the confidential application forms submitted by all the candidates; a presentation prepared by Mr Pearson as part of the recruitment process and information contained in a number of other documents relating to the authority’s decision-making process. The central issue in the case was whether this information was exempt from disclosure under s. 40(2) read together with s. 40(3)(a)(i) FOIA (exemption for personal data where disclosure would breach the first data protection principle).

So far as the information in the application forms was concerned, the tribunal took the view that this had properly been withheld under s. 40. In reaching this conclusion, the tribunal took into account a number of factors including the following:

  • the applicants would not have expected the forms to be disclosed unless this was required as part of the recruitment process

 

  • the application forms contained information relating, not to the performance of the public role applied for, but rather to the candidate’s personal professional history (it was part of their ‘life story’ and was ‘deeply personal’)

 

  • disclosure would damage the career prospects of most of the individual applicants as it would result in their current employer knowing that they were looking for alternative employment (this point did not apply to Mr Pearson who was already employed by the authority at the time of the recruitment process)

 

  • the provision of biographical information by applicants in the context of recruitment into an official role could not be compared with the disclosure to the public of biographical information relating to candidates for election to political office

 

  • whilst the interests of data subject are not paramount where the data in question relates to their public lives, the application process leading to appointment did not bring into play the discharge of public functions by the individual applicants as compared with their conduct once appointed.

 

The tribunal refused to accept that there were specific factors applicable to Mr Pearson’s form rendering that form more susceptible to disclosure. In reaching this conclusion, the tribunal appears to have taken into account in particular that the recruitment process itself appeared to have been conducted in a proper open and transparent manner. The tribunal went on to conclude that Mr Pearson’s presentation was also exempt from disclosure.

However, the tribunal also went on to hold that other information falling within the scope of the request has been improperly withheld, particularly as that information did not in fact amount to personal data. In this respect, the tribunal criticised the authority for having been too broad brush in its assessment of whether the withheld information amounted to personal data: tge fact that certain documents contained some personal data was no justification for withholding the remaining information in the document; the authority ought to have dealt with such mixed information by redacting the personal data and disclosing the impersonal data. Thus, for example, it held that the authority should have disclosed a blank version of the application form so as to increase transparency around the application process. The tribunal also held that the authority ought to have disclosed the identity of those officers in senior roles who were involved in the recruitment process.

The fact that the tribunal found in Bolton that the substantive content of the application forms was lawfully withheld under s. 40 is likely to prove reassuring both for public authorities conducting recruitment exercises and for potential recruits. However, the decision should not be construed as implying that such information will always be treated as exempt under s. 40. It may well be that the tribunal would have reached a different conclusion had there been evidence of nepotism or discrimination tainting the recruitment process.