When considering request for information under the Freedom of Information Act 2000(FOI) public authorities often face a dilemma about disclosing names of staff.
Names are generally considered to be personal data, being information relating to living identifiable individuals (as defined by the Data Protection Act 1998 (DPA)). (Although one Information Tribunal (as it was known then) decision, Harcup v Information Commissioner and Yorkshire Forward (EA/2007/0058), ruled they are not. (See episode 11 of my FOI Podcasts for a full discussion of this decision). Therefore the exemption under section 40(2) (third party personal data) will have to be considered.
For this exemption to be engaged a public authority must show that disclosure of the name(s) would breach one of theData Protection Principles. Most cases in this area focus on First Principle and so public authorities have to ask, would disclosure be fair and lawful? They also have to justify the disclosure by reference to one of the conditions in Schedule 2 of the DPA (as well as Schedule 3 in the case of sensitive personal data). In the absence of consent, most authorities end up considering whether disclosure is necessary for the applicant to pursue a legitimate interest and, even if it is, whether the disclosure is unwarranted due to the harm caused to the subject(s) (condition 6 of Schedule 2)?
The seniority of the staff, whose names are being requested, will of course be a key factor in deciding whether disclosure is fair. The first Information Tribunal decision on this issue, back in 2007, (Ministry of Defence v Information Commissioner and Rob Evans (EA/2006/0027)) concerned a request made by a journalist for a staff directory which included the names and contact details of individuals working for the Defence Exports Services Organisation. The MoD refused to disclose the information citing, amongst others, the exemption under section 40(2).
The Tribunal ruled that that the MoD could only withhold names of staff if they are particularly junior (below Civil Service B2 Level), not immediately responsible for the requested information and their name is not already available elsewhere (or would be expected to be through their performing a public-facing duty); or there is a clear and demonstrable threat to that individual’s health and safety if their name is made public.
As is clear from the MoD decision, seniority is just one factor to be taken into account. Public authorities should avoid the blanket non-disclosure of the names of all officers below a certain level of seniority. When it comes to the disclosure of names, what matters is what work the individuals are doing, rather than their seniority or grade. If a person is in a front facing role and his/her name is already in the public domain, then it will be difficult to withhold it.
In 2008 another Tribunal decision (The Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Friend of the Earth (EA/2007/0072) examined whether names of private sector employees attending a meeting should be disclosed as well as those of civil servants. The request was for information about meetings and correspondence between Ministers and senior civil servants in the Department of Business, Enterprise and Regulatory Reform and employees from the Confederation of British Industry. Some of the documents relevant to the request included references to individuals who had attended such meetings as spokespersons or as note takers or bystanders. The Tribunal summarised the position as follows:
a. Senior officials of both the government department and lobbyist attending meetings and communicating with each other can have no expectation of privacy. The officials to whom this principle applies should not be restricted to the senior spokesperson for the organisation. It should also relate to any spokesperson.
b. Recorded comments attributed to such officials at meetings should similarly carry no expectation of privacy.
d. In contrast junior officials, who are not spokespersons for their organisations or merely attend meetings as observers or stand-ins for more senior officials, do have an expectation of privacy. This means that there may be circumstances where junior officials who act as spokespersons for their organisations are unable to rely on an expectation of privacy;
e. The question as to whether a person is acting in a senior or junior capacity or as a spokesperson is one to be determined on the facts of each case.
f. The extent of the disclosure of additional information in relation to a named official will be subject to usual test i.e. is disclosure necessary for the applicant to pursue a legitimate interest, and, even if it is, is the disclosure unwarranted due to the harm caused to the individuals by disclosure? This will largely depend on whether the additional information relates to the person’s business or professional capacity or is of a personal nature unrelated to business.
In January 2011, the First Tier Tribunal (Information Rights) considered disclosure of names in Dun v IC and National Audit Office (EA/2010/0060). The disputed information concerned the NAO’s enquiry into the FCO’s handling of employee grievances of a whistleblowing variety. 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. This decision is discussed in detail in episode 21 of my FOI Podcasts.
Where there is a risk to staff safety if their names are disclosed, then the public authority will be right to err on the side of caution. In Wild v IC and Chief Constable of Hampshire Constabulary (EA/2010/0132) the Appellant requested the dates of pre-hunt meetings in the last five years and the names of police officers attending pre-hunt meetings with organisers of the Isle of Wight Hunt. The Police responded, providing dates, but refusing to disclose the names of the officers in attendance.
The Commissioner considered the section 40(2) exemption and concluded that the disclosure would result in a breach of the First Data Protection principle. He accepted that the disclosure may lead to the harassment of the officers identified and consequently the disclosure would be unfair to those officers. The Tribunal upheld the Commissioner’s decision.
Don’t forget condition 6 of schedule 2 of the DPA. A public authority will have to consider whether disclosure of a name is necessary for the applicant to pursue a legitimate interest, and, even if it is, whether the disclosure is unwarranted due to the harm caused to the individual by the disclosure.
A more recent Tribunal decision (January 2013), McFerran v IC (EA/2012/0030) involved a police search of a property owned by Shropshire County Council. At the police’s request, two junior council officers were present, but they had not been involved in any of the decision-making. The requester wanted the names of the council officers as well as their immediate superior. The council refused, relying on s. 40(2).
The Commissioner ordered disclosure of the name of the more senior officer, but not of the two juniors. The Tribunal agreed with this decision and dismissed the requester’s appeal, observing that:
“although… there is clearly a legitimate public interest in transparency of activity by public authorities, which impinges on the personal freedom of householders, there is insufficient information provided to add significant weight to the general public interest in transparency in public affairs. The Appellant has not satisfied us, either, that his attempts to have the matter investigated are being thwarted by the absence of the names of the individuals in question. If there is sufficient information about the event to interest those responsible for an investigation the absence of names will not deter them.”
This decision illustrates that, when it comes to junior officials, the requestor will have to show that there is legitimate interest in knowing the names of officers where they are junior. A general argument about openness and transparency will not suffice.
In Armit v IC and Home Office (EA/2012/0041) the UKBA redacted the names of the officials in a document entitled ‘Tourist Selection Indicators and Selection Techniques’ which fell within the scope of the request. The Tribunal agreed with this approach, taking account of the requester’s failure to identify a legitimate interest in public disclosure of the names of those officials:
“We do not accept the argument that the officials would not have expected their names within the document to be made public and were not given compelling evidence of this. We were given no information as to their specific grading but they were described in the document as ‘lead contributer’ and ‘lead postholder’. They clearly have some responsibility in relation to the work. We were given no compelling evidence that disclosing their names would result in victimisation, insult or any form of danger. However, we do accept that the officials would prefer not to have their names identified and that might in itself represent a certain right and freedom or legitimate interests in itself. In any event, to process personal data, it needs to be necessary to pursue the purposes of legitimate interests pursued by others. In this case, we do not find that the Appellant has shown any legitimate interest in the names of the officials being disclosed to the public under FOIA. We conclude that the information is therefore exempt from disclosure.”
Another recent Tribunal decision on the disclosure of names is Roberts v IC and Dyfed Powys Police Authority (EA/2012/0032).
The issue of disclosure of names pursuant to an FOI request is a difficult one. As can be seen from this discussion of Tribunal decisions, a number of different factors have to be weighed in the balance. A blanket approach will not work.
Whilst on the subject of names, does an FOI requestor have to give his/her real name? Read the answer here as well as a really bad joke!
Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshop on 13th March 2013.
Do you want an international recognised qualification in FOI? The ISEB Certificate in Freedom of Information starts in Birmingham on 26th March 2013.
The Leveson Report has finally been published.
