Question 1: What is the legitimate interest in disclosure (or what is the purpose)?
This includes the legitimate interest of the public authority or a third party, which is likely to be the requestor. A wide range of interests may be legitimate interests. The requestor may have a personal and private reason for wanting to know staff names, but this makes it no less relevant. In the Halpin case, the Upper Tribunal confirmed that a purely private interest was capable of amounting to a legitimate interest. In this case Mr Halpin wanted details of the training undertaken by two social workers because their capacity and skills were relevant in any appeal against a Care Act assessment.
Question 2: Is it necessary to disclose staff names for that purpose?
This requires a public authority to ask whether it is “necessary” to disclose staff names in order to serve the legitimate interests of the requestor. It may be possible to provide the applicant with alternative information, such as the numbers of staff involved in a meeting and information about their roles and levels of seniority without providing names. For example, in McFerran v Information Commissioner EA/2012/0030,the requestor wanted to know the names of the council staff who were present during a police search of a council property. The Tribunal acknowledged that there was a legitimate interest in knowing that the search had been conducted properly but it was not necessary for the requestor to know the names of the council staff involved.
Question 3: Does the legitimate interest outweigh the interest and rights of the staff concerned?
This involves a balancing exercise. Public authorities need to consider the likely impacts or consequences that disclosure of staff names will have on the staff themselves.
Names should not be disclosed if disclosure will cause unjustified adverse effects on the staff concerned. It is important to remember when making this assessment, that disclosure of names under the FOI is to “the world at large”. Again, the Upper Tribunal in Halpin was at pains to emphasise that even if the requestor indicates they have no intention of publicising the information, the public authority loses control of the information once it is disclosed. Disclosure under the FOI is not subject to any duty of confidence. This becomes a relevant factor in deciding whether the disclosure will cause unwarranted harm to the named individuals.
The key question when it comes to disclosing names, is what is the harm that will arise from disclosure? There must be a connection between the disclosure and the harm.
Even if disclosure may cause distress to a member of staff this doesn’t automatically trump the legitimate interests of the requestor; the public authority must undertake a balancing exercise. When a public authority carries out this balancing exercise it should take the reasonable expectations of the staff concerned into account. For example, just asking whether the member of staff concerned would have a reasonable expectation that their names would be disclosed to the world at large provides a useful starting point.
This also enables the public authority to address the question of fairness.
In deciding whether to disclose staff names it is important to think about the public facing nature of the role filled by the individual member of staff ; their seniority in the organisation; whether a public authority has a policy on the disclosure of staff names that informs their expectations. The staff privacy notice should also provide staff with some understanding of when their names may be disclosed in response to FOI request.
Clearly a Chief Executive of an organisation should expect that their name is released into the public domain. As the ICO guidance advises:
“The more senior an employee is and the more responsibility they have for decision making and expenditure of public money, the greater their expectation should be that you disclose their names.”
On the other hand somebody with responsibility for cleaning offices will have a real expectation that their name remains confidential. FOI practitioners are familiar with this assessment, which is based on ICO guidance and an earlier case of Home Office v Information Commissioner EA/2011/0203. This said that the names of junior civil servants are generally protected from disclosure unless they occupy a public-facing role. However the decision in the Cox case makes it clear that each case will depend on its own facts and context. There is no blanket presumption in favour of disclosure of the names of senior officials, each case must be considered carefully and with regard to the legitimate interests of the requestor.
Disclosing Names of FOI practitioners
The question of whether a public authority should disclose the name of a person handling an FOI request raises all of the above considerations. First, what is the legitimate interest in a FOI requestor knowing the name of the person who handled their request?
Second, is it necessary to know that person’s name to serve that legitimate interest? Finally does the legitimate interest of the requestor outweigh any harm that may be caused to the member of staff handling the request. There is no legal obligation to disclose staff names and a public authority could refuse under S 40(3) FOI if all of the above are satisfied.
In the interests of transparency many public authorities disclose the names of the person who has handled their request. Given the public facing role and the work that FOI practitioners do it is arguable that their expectation is that their names may be disclosed. However in some organisations FOI requests are dealt with by many different staff at various levels rather than via a single FOI point of contact. In these circumstances more junior staff who have handled requests may have a greater expectation of privacy.
This and other developments will be discussed in our FOI and EIR workshops which are now available as an online option. If you are looking for a qualification in freedom of information, our FOI Practitioner Certificate is ideal. It will soon be available as an online option. Please get in touch to learn more.
