Tag: section 40 FOIA

TWO HIGH COURT ‘PERSONAL DATA’ JUDGMENTS: DIGITAL ECONOMY ACT 2010 AND ABORTION STATISTICS

Posted on | by Robin Hopkins

The High Court has today handed down two judgments of some significance in the context of personal data.

This morning, Kenneth Parker J gave judgment in the application brought by BT and TalkTalk for judicial review of the Digital Economy Act 2010 (on which, see my earlier discussion here). The Act seeks to combat illegal file-sharing by allowing copyright owners to detect apparently unlawful online activity and report it to the suspect’s internet service provider, who must then warn the suspect against repeat infringements. The claimants contended, among other things, that this regime breached EU data protection law. Their claim failed on this and three other grounds, succeeding only with their fifth ground, which contended that internet service providers should not have to foot 25% of the bill for the regime imposed by the Act. Read the DCMS’ press release here.

This afternoon, Cranston J gave judgment in the “abortion statistics” appeal (on which, see my earlier Panopticon post here). The Information Tribunal had upheld the Commissioner’s decision to order disclosure of “low cell count” statistics as to the number of abortions carried out on specified grounds. Argument had focused on the risk of doctors, and in particular patients being identified. The Department of Health’s appeal to the High Court was dismissed. The judgment represents a notable development in jurisprudence on personal data.

More analysis to follow when these judgments are made available.

NEW TRIBUNAL DECISION ON DISCLOSURE OF COUNCIL’S COMPROMISE AGREEMENT WITH EX-CEO

Posted on | by Robin Hopkins

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”.

PAYMENTS TO SENIOR PUBLIC SECTOR EMPLOYEES: ROUNDUP OF RECENT PERSONAL DATA CASES

Posted on | by Robin Hopkins

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.

PERSONAL DATA OF WHISTLEBLOWING CIVIL SERVANTS: REDACTION AND FAIRNESS

Posted on | by Robin Hopkins

Those considering the disclosure of personal data in a civil service context will wish to pay close attention to last week’s decision in Dun v IC and National Audit Office (EA/2010/0060). This is the latest Tribunal exercise in forensic scrutiny of fairness under the “personal information” exemption at section 40 (applied in tandem with the first data protection principle under the DPA).

The disputed information concerned the NAO’s enquiry into the Foreign & Commonwealth Office’s handling of employee grievances of a whistleblowing variety, i.e. those in which the employee had raised concerns as to “the proper conduct of public interest, fraud, value for money and corruption in relation to the provision of centrally-funded public services”. The request for information was triggered by the FCO’s inadvertent publication on its intranet of a “track changes” version of the draft report sent to it by the NAO: this tended to suggest that the FCO had sought not only to correct points of fact in that draft report, but also to influence its conclusions.

Unfairness of grievance and investigation information was pleaded based largely on the expectations of the complainants that their personal data would not be disclosed, and on the distress of their potentially being perceived as “trouble makers”.

A number of categories of arguably personal data were examined: junior civil servants’ names (outcome: don’t disclose), junior civil servants’ roles or job titles (outcome: disclose), contact details (outcome: don’t disclose, except for that part of an email address containing the name of a person whose name was otherwise to be disclosed), details of complaints and criticisms of employees (outcome: disclose in sufficiently redacted form).

The issue of redaction turned on whether disclosure in redacted form would preserve anonymity or achieve fairness – the NAO and IC had said no, but the Tribunal disagreed. It found that disclosure of whistleblowing case information in redacted form would be fair where (i) only those involved would be able to identify the persons being referred to, and (ii) those involved would not learn anything from the disclosed material which they did not know already.

This case is another instance of the established position that disclosure of the names of senior civil servants (here Grade 5 or above) will generally be fair, whereas those of their more junior colleagues would not. A note of caution here, however: the Tribunal was clear that no blanket policy should apply, and that fairness depends on the particular responsibilities and information with which the case is concerned.

One interesting aside: what of a civil servant who was junior at the time the information was created, but has since been promoted? Generally, subsequent events should not make a difference, but not necessarily: the Tribunal observed that it could “envisage a scenario where it is fair to disclose an earlier document in order to refute protestations of ignorance from the same individual who later becomes more senior and accountable”.

Application of the first data protection principle

Posted on | by Edward Capewell

Ms Alison Ince worked in a further education institute in Northern Ireland. She was dismissed from her employment in June 1999 and, from around 2002, had alleged on a number of occasions that her managers had been engaged in a fairly widespread fraud against the public purse in 1997. These allegations were investigated first by the Department for Education and Learning (DEL), and then by the Police Service of Northern Ireland. No criminal or disciplinary charges were brought and the investigation was not taken any further. Ms Ince had also raised the matter with her local MLA, with the chairman of the public accounts committee in Westminster and before an Industrial Tribunal (as they are still called in Northern Ireland). The IT held that there were no grounds for finding that any fraud had been committed.

Ms Ince was not satisfied with this finding. In October 2007 she made a request for information from the DEL with respect to her allegations of fraud at the institute. The information she sought included the transcripts of certain interviews held with other employees during the fraud investigation by the DEL. DEL provided some of the information, but withheld the transcripts pursuant to the personal data exemption in section 40(2) FOIA. The Information Commissioner agreed with DEL’s reliance on the exemption.

The Information Tribunal in Ince v Information Commissioner (EA/2010/0089) agreed – for the most part – with the Commissioner’s decision. Save in respect of one of the transcripts – that belonging to a friend of Ms Ince who gave evidence at a late stage in the hearing in which he consented to disclosure – the Tribunal found that it would not be fair for DEL to disclose the information and that disclosure would therefore breach the first data protection principle. Ms Ince had made four contentions in respect of the information:

(i)                  That because it related to the individual’s employment for a public sector organisation it related to their public, not private life;

(ii)                That no harm or distress would have been caused to the individuals by disclosure of the transcripts;

(iii)               That the interviewees’ objections to disclosure were outweighed by other considerations; and

(iv)              That the interviewees did not have a reasonable expectation of privacy in respect of the transcripts

The Tribunal disagreed on all counts. As to (i), following the reasoning in Corporate Officer of the House of Commons v IC and Baker it unanimously rejected the notion that anything said or done by a public sector employee was public information and could therefore be disclosed. It found by a majority that “the disputed information in the case related to the individual’s employment but was not information so directly connected with their public role that its disclosure would automatically be fair”. As to (ii), the Tribunal found that harm or distress would be caused by disclosure generally, and would also be caused by Ms Ince’s own ‘disproportionate’ method of pursuing her allegations –  which included threatening to bring private prosecutions for fraud against certain individuals. The Tribunal further considered that the Commissioner had given appropriate weight to the interviewees’ clearly expressed objections, and that they also had a reasonable expectation of privacy in respect of the transcripts. There was moreover no common law public interest in disclosure – fraud in the education sector generally was obviously of legitimate concern, but would not be helped by disclosure of the information sought by Ms Ince.

ELECTORAL COMMISSION’S INVESTIGATION INTO UNLAWFUL POLITICAL DONATIONS: PERSONAL AND NON-PERSONAL DATA

Posted on | by Robin Hopkins

Wendy Alexander MSP became leader of the Labour Party group in the Scottish Parliament in September 2007. In the course of her leadership election campaign, someone in her team recorded a donation of £950 as coming from a domestically-based company, whereas it in fact came (unlawfully) from an overseas-based individual. The Electoral Commission investigated two potential criminal offences that arose under the Political Parties, Elections and Referendums Act 2000. In February 2008, it issued what the Information Tribunal described as a “meagre statement”. It said that there was insufficient evidence of an offence under section 61 (knowingly facilitating, concealing or disguising an impermissible donation), but it acknowledged – implicitly – that an offence under section 56(3) (failure to return an impermissible donation within 30 days). Nonetheless, the case was not referred to the Procurator Fiscal. Many were dissatisfied with the investigation.

 

The requester in this case sought further information. Answers to a number of his questions were withheld. The Tribunal in Ferguson v IC and The Electoral Commission (EA/2010/0085) has today handed down a decision which is notable both for its commentary on the interaction between personal data and the inherent publicity of political life, and for a number of distinctions it draws between types of information which, at first glance, may appear to be personal.

 

Broadly, there were two types of question in dispute. One type sought the names of those who provided the Electoral Commission with answers to certain questions. Applying Durant, the Tribunal held that this was not personal data. Even if it were personal data, a Schedule 2 condition would be met, and the processing would be lawful and fair because there was no indication that interviewees had an expectation of confidentiality. The Tribunal emphasised that fairness does involve a balance of competing interests. Section 30(1) was engaged, but the public interest favoured disclosure. Here the Tribunal rejected the submission that disclosure would undermine voluntary co-operation with the Electoral Commission’s investigations: “politicians and their supporters have strong incentives to co-operate with the Commission”.

 

The second type was about who had misrecorded the donation and why. This was held to be sensitive personal data. The Tribunal cautioned against generalising about FOIA being purpose-blind: an applicant’s identity and motives may sometimes shed light on the public interests involved, and on whether conditions from Schedules 2 and 3 are met. In this case, however, a Schedule 3 condition was not met: the Tribunal was not persuaded that, at the relevant time, the answers the appellant sought were necessary for him to obtain legal advice on a possible application for judicial review of the Electoral Commission.

 

The Tribunal remarked that the appellant would have had a “strongly arguable case” under condition 6(1) of Schedule 2, and made a number of observations on fairness. It commented that “politics is an inherently public activity. The extent and manner of compliance with the rules should be expected to be subject to public scrutiny”. The Tribunal did, however, distinguish between the section 56 offence (implicit finding of guilt) and the section 61 offence (explicit finding of insufficient evidence). Disclosure concerning the former would not be unfair: Ms Alexander “would be well able to say in mitigation anything that she wished by making public statements, as any serious politician would”. Disclosure concerning the latter would be unfair: it “would risk placing the data subjects under a cloud of suspicion, in circumstances where there might be no definitive termination of speculation and where, as a result, undue distress would be likely to ensue”.