Details of names and roles of senior council officials involved in recruitment subject to disclosure under FOI, Tribunal rules

Out-Law News | 04 Apr 2012 | 9:25 am | 4 min. read

Councils should be prepared to disclose the names of senior staff members involved in recruiting senior councillors or officials as well as details of the role they played in that recruitment, an Information Rights Tribunal has ruled.

The Tribunal said that it was in the public interest for the information to be disclosed when subject to a freedom of information (FOI) request and rejected claims that the disclosure of the personal data would unfairly impinge on those officials' privacy.

"The Tribunal is satisfied that those in senior posts should be disclosed on the basis that it is part of their job, they are senior, forward facing and disclosure is in the interests of transparency in showing how decisions were made and by whom," Tribunal judge Fiona Henderson said in the ruling (15-page / 109KB PDF).

"There is a public interest in understanding how the process was carried out. The Tribunal is satisfied that this applies to team leaders or service heads, the Chief Executive and any Councillors. Others do not hold end of the line authority and disclosure in this context would put them in the spotlight unfairly when they are not ultimately accountable," she said.

Under the Freedom of Information Act (FOIA) individuals have a general ‘right to know’, which entitles them to be provided with information held by Government departments and public bodies. However, those bodies can legitimately withhold information requested in some circumstances. Information can be held back under qualified and absolute exemptions, although in the case of qualified exemptions organisations are still obliged to conduct a 'public interest test' to determine whether it is right for information to be disclosed – the presumption being in favour of that disclosure.

One absolute exemption in FOI laws allows public authorities to refuse to disclose information they hold when the information amounts to personal data where to do so would be a breach of the Data Protection Act.

The Data Protection Act requires organisations to process personal data fairly and lawfully. In determining whether it is fair to process the information organisations must consider the method in which it obtained the data and whether its purpose of processing would deceive or mislead the person from whom the information was obtained.

However, personal data can be legitimately disclosed in some cases.  For the data protection exemption, a slightly different public interest test applies for which there is no presumption in favour of disclosure.  Here, the legitimate interests of the public in the disclosure need to be balanced against the interests of the individual whose personal data would be disclosed. 

The Tribunal was ruling in a case involving an FOI request made by Peter Bolton to East Riding Yorkshire Council (ERYC). The Council had refused to provide Bolton with some details he sought relating to the appointment of the Council's chief executive, Mr Pearson. It had claimed that as the information was personal data it was exempt from being disclosed and that it was not in the public interest to override the application of that exemption.

Bolton had appealed the decision to the Information Commissioner, but the Tribunal determined that the Commissioner had wrongly assessed that Bolton was only looking for information about Pearson and not other applicants for the then-vacant job.

Bolton claimed that Pearson had advised the Council on his predecessor's "early retirement package" and that the predecessor was then subsequently involved in "the administration of the recruitment process for his successor". He said that it was in the public interest for information about Pearson's appointment to be disclosed.

The Tribunal accepted that there was a public interest "in transparency of public sector organisations and in the public knowing that senior appointees are properly qualified to fulfil the posts requirements" and "in knowing that recruitment has been undertaken in an open and fair competition". It also said there is public interest "in knowing how the appointment process was carried out". However, it said that public interest had to be balanced against the "potential damage and distress" that disclosure could cause.

Both ERYC and the Commissioner argued that disclosing details of the applications made by rejected candidates "could cause considerable damage". This was because it could harm the "career prospects" of those individuals if their current employer came to know that they had applied for work elsewhere, they had claimed.

The Tribunal also said that disclosure of the information could potentially harm the rejected candidates' "career prospects in future applications". This is because the information would reveal "the unique selling points" those candidates hoped would get them the job and inform rivals for future roles how they "were likely to frame their application". Future applications may also be damaged by virtue of the fact that "prospective employers would know that an applicant had been unsuccessful" for a particular role in the past, the Tribunal said.

The Tribunal determined that the potential damage that could be caused by disclosure of the information outweighed the legitimate public interest in that disclosure.  However, ERYC has been ordered to disclose some of the information that Bolton sought with redactions after the Tribunal said that the council had relied on the personal data exemption to withhold information about the application process that could be disclosed.

"The Tribunal finds that insufficient consideration has been given to the redaction of the disputed information so that the personal data is removed but the surrounding information which demonstrates responsibilities, processes, and expectations can be made public," it said. "When considering whether the first data protection principle is breached by disclosure, the Tribunal considers whether the legitimate public interests can be met without the disclosure of personal data."

"The Tribunal is satisfied that in some instances disclosure of redacted documents such as the blank application form adds to the transparency surrounding the application process," it said.

The Tribunal also ruled that ERYC did not have to disclose details of the presentation that Pearson made during the interview for his job.

"The Tribunal is satisfied that this should not be disclosed because: these are [Pearson's] personal thoughts on a professional situation, his private view may differ from his professional advice when in post [and because] it shows how he constructs an argument for the purposes of applying for a job," the ruling said.

The Tribunal also determined that disclosure of the presentation details was also "not necessary for scrutiny of [Pearson's] policies because were he to seek to implement his vision this would be through the democratic process which is subject to public scrutiny".