Disclosure of some details about senior council officials' interests legitimate, Tribunal rules

Out-Law News | 24 Feb 2012 | 7:38 am | 5 min. read

Bolton Metropolitan Borough Council has been ordered to disclose information relating to the professional interests of senior council members following a ruling by the Information Rights Tribunal.

The Tribunal said that the Council must hand over the names, department and section of council staff ranked as 'chief officers' as well as some details that they had previously disclosed on an internal register of interests at the Council. The information had been requested by a Mr Greenwood under the Freedom of Information Act (FOIA).

However, the Council does not have to disclose other information Greenwood had sought. This includes information relating to the interests of less senior council staff members, and information about chief officers' membership of organisations.

The Council had argued that disclosure would breach its need to process personal data fairly and lawfully. It would be unfair because the councillors had submitted the information expecting that only the Council's monitoring officer and other "authorised" officers at the authority would be able to see it, the Council had claimed.

However, the Tribunal said that the Council had failed to consider whether there was a reasonable expectation among the councillors that the information could be disclosed under FOIA.

"It would be fair to disclose names, departments, sections and job titles of those who have made entries on the register," Tribunal judge Fiona Henderson said in her ruling. (20-page / 117KB PDF)

"This relates to their professional life in the public service. The names etc. are likely to be publicly available in any event (from Council letters, signatories to letters, Council meetings or reports). The additional information discernable from disclosure in this context is that the individuals have made an entry on the register. The Tribunal considered whether disclosure in this context would be unfair as they would be 'exposed' in a way that colleagues who had failed to make an entry would not. The Tribunal was satisfied that the numbers involved were not so small (being between 50 and 100) that there was any likelihood of any individual standing out," she said.

"Additionally the Tribunal is here considering disclosure of the fact of an entry on the register not which category the entry related to. To use the register of Councillors by way of example this may just mean that the employee is a member of the RSPB and no additional inference can be drawn from this disclosure alone," she said.

The Council requires 'senior' staff members above a certain pay grade to disclose information about their outside interests in a register "if they have any personal interests or involvement which might conflict with their employment or the interests of the Council". Greenwood had requested that the Council disclose those details relating to all staff that had made disclosures on the register. However, Henderson said that only the information relating to those in 'chief officer' posts should be disclosed.

The judge said that the Council's threshold for determining who constituted a 'senior' employee was too low and that the privacy rights of staff ranked below chief officer status outweighed competing interests in disclosing the information.

"The Tribunal considers that seniority is material to the expectation of Officers and is satisfied that there is less of an expectation for disclosure of personal data in the interests of transparency for the more junior grades. Both in terms of consistency of application (e.g. they would have no expectation of their salary being disclosed) and also because there are checks and balances above them in terms of line managers with decision making power," Henderson said.

"Additionally the Tribunal is satisfied that the type of information recorded will affect the expectation of the Officers. The more it relates to work or professional life the less expectation that it would remain private. However, there would be a greater expectation of privacy relating to information which but for the potential for conflict with Council business, is wholly independent of an Officer’s role at the Council," she said.

Under 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. 

Henderson said it was "necessary" for the Council to process and disclose the information it held about the chief officers. This was because "senior officers should not be in a position where they can affect matters on which they have a personal interest; there is a public interest in allowing the public access to this type of information in order to promote public confidence and scrutiny of decision making; the public has a legitimate interest in being able to access such information [and because] there is a need for clarity on the personal interest of senior officers for this reason".

Disclosure was also "necessary" because it "would provide a check on whether officers had made proper disclosure" and "would increase trust in decisions taken by officers," the Tribunal said.

However, Henderson ruled that the Council did not have to hand over information relating to whether chief officers were members of particular organisations or associations. Because those groups may publicise the time and dates of meetings there was a danger that it could be "misused or misrepresented" to "locate and identify where individuals are at certain times". Disclosure of the information was not justified as a result, the judge said.

"The Tribunal considers that the information is sufficiently detailed that it would enable a portrait to be built up of someone for lobbying, or marketing purposes and that this would be very intrusive," Henderson said. "The difference between knowing how and in what capacity an individual spends the rest of their working time is very different from knowing where they live, and what they do in their spare time away from their working life".

Details of the home addresses of chief officers also did not have to be disclosed as this too would be too privacy intrusive, Henderson said. There was also no overriding public interest in sensitive personal data, such as in relation to chief officers' faith interests, being disclosed, she said.

Henderson also ruled that redactions were required to prevent the personal data and home addresses of third-party individuals – which may have been listed by chief officers when declaring their interests on the register – from being disclosed.

She said disclosing such information would be "unfair and unlawful" because the third party individuals identified on the register "would have no expectation that their personal information would be disclosed as a result of the entry by another on the register".