Monday, August 06, 2007

Tribunal ruling on naming officials

The following note on a recent Information Tribunal ruling has been submitted by Jim Matthew.

The issue of release of personal information relating to members of staff (operating in a professional capacity) is one that has been exercising FOI professionals since the Act came into force in 2005. Although the Information Tribunal take pains to point out that their decision should not be seen as setting any precedents, in conjunction with previous decisions, Ministry of Defence v Information Commissioner and Rob Evans does help to clarify the situation somewhat (albeit that the typo in article 1 of the decision is particularly confusing (referring to “below” when the subsequent text makes it clear that it should be “above”)).

In general, 3 exemptions have been used to refuse to disclose the names of officials;

– Section 36 (prejudice to effective conduct of public affairs)
– Section 38 (health and safety); and
– Section 40 (personal information).

Section 36 is the most contentious. The only justification for trying to use it is that any official would receive so many phone calls/e-mails/other correspondence as a result of being named that they could no longer perform the job they were being paid to do. Given how easy it is to screen e-mails, phone calls etc these days (or change them if required), not to mention any concept of public accountability for those performing duties which have a public impact, this has always seemed a bit tenuous when applied in general terms! However, it can be applied to junior staff members. Junior public servants might have a role to play in the creation of information but, even if they drafted a document, they are not expected to take responsibility for it (it would be written on instruction from, and reflecting the views of, a more senior official who would take responsibility), more often, they have probably only been copied in for information (or to ensure a document is correctly filed). There now seems to be a consensus (supported by this IT decision) in support of this view and section 36 can only be used to prevent the disclosure of names in very specific circumstances (in this particular instance, a simple staff directory, staff at or below B2 level – which equates roughly to Higher Executive Officer in the broader civil service – not in a public-facing role).

Section 38 has been commented on in some detail, including in this IT decision (but most clearly in decisions issued by the Scottish Information Commissioner), and it is now obvious that this can only be applied where there would be a real, genuine and demonstrable threat that the safety of staff members would be threatened if their name were made public (and, according to this particular IT decision, only if measures to protect the individuals concerned were not already in place).

Section 40 is perhaps the most interesting exemption. Both the Information Commissioner and the Tribunal accept that names, work phone numbers and work e-mail addresses of staff members are personal data under the Data Protection Act, and therefore covered by the exemption in section 40 of the FOI Act. However, this decision reinforces the Commissioner's guidance (Freedom of Information: access to information about public authorities' employees) which states that “professional” information should be handled differently from personal and private information (e.g. you should not get details of a staff member's disciplinary records which are personal data and clearly exempted under section 40, but details of that same staff member's involvement in determining policy etc), should be released.

This Tribunal decision therefore makes it even clearer that public authorities could only withhold staff names if;

- they are particularly junior (B2/HEO level in the latest IT decision), 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.

Jim Matthew


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