Line to take - LTT152 - Naming Officials representing Lobbyists and Public Authorities

• FOI/EIR: FOI, EIR
• Section/Regulation: s40, reg 13
• Issue: Naming officials representing public authorities and third party organisations, such as lobbyists
• Source: Information Tribunal, Court of Appeal
• Details: Harcup (5 February 2008); Michael John Durant v FSA (Court of Appeal July 2003); DBERR v ICO & FoE (29 April 2008); Creekside Forum (28 May 2009)
• Related Lines to Take: LTT148, LTT149
• Related Documents: EA/2008/0065 (Creekside), EA/2007/0072 (DBERR), EA/2007/0058 (Harcup), [2003)EWCA Civ 1746 (Durant)
• Contact: RM/GF
• Date: 14/09/2010
• Policy Reference: LTT152
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Officials representing public authorities or third parties should expect their names to be disclosed where they communicate with one another in their role as a spokesperson.

Any official who is a spokesperson should expect their name to be disclosed, regardless of whether they are senior or junior staff.

Where names can be linked to their contributions, then providing those comments relate to their professional capacity and do not reveal information of a personal nature, then the name and associated comment should generally be disclosed.

In the rare situation where a junior official who does not normally act as a spokesperson and is only doing so as a stand in for a more senior colleague, then it would be reasonable for that junior official to have an expectation of privacy and to not be named.

It would also be a reasonable for any junior official who is not a spokesperson to have an expectation of privacy and to not be named.

Further Information

(Note: This line focuses on the naming of officials in the context of communications between lobbyists and public authorities. It is possible that the broad principles developed in this line may apply to the naming of officials and third parties in other situations but this will have to be considered carefully on a case by case basis.)

In DBERR v ICO & FoE (Friends of the Earth) the Tribunal considered whether the names of officials contained in records of meetings and correspondence between the Confederation of British Industry (CBI) , an influential body representing and lobbying on behalf of British industry, and the department were exempt under s40(2) or reg 13. The department had disclosed the names of its own officials but had withheld all the names of the CBI’s representatives except that of its Director General, Sir Digby Jones.

The Tribunal’s decision provides some useful guidance that the Commissioner would wish to follow in cases that concern access to information on the dialogue between a public authority and the representatives of any third party, other than a natural person, such as a company or lobbyists and includes information recorded in both correspondence and notes of meetings.

Are names in this context personal data?

The Tribunal first considered whether the names of officials was personal data. This may seem a very obvious question and following the DP Technical Guidance — Determining What is Personal Data ,the answer is clearly ‘yes’ as names are the most obvious way of identifying or distinguishing one individual from another and so brings them easily within the definition of personal data as set out in s1(1) of the DPA.

However a differently constituted Tribunal in Harcup took the view that the names of individuals attending events hosted by Yorkshire Forward, a regional development agency, was not personal data. The basis of the Harcup decision was that following the Durant judgement, the focus of the information was on the businesses represented by those individuals and that the information had little or no biographical significance to those individuals. The Commissioner disagrees with the Harcup decision.

In DBERR although the Tribunal noted the Harcup decision it found that;

“... in relation to the facts in this case that the names of individuals attending meetings which are part of the Disputed Information are personal data. This is because the individuals listed as attendees in the minutes and elsewhere in the Disputed Information will have biographical significance for the individual in that they record his/her employer’s name, whereabouts at a particular time and that he/she took part in a meeting with a government department which would be of personal career or business significance.” (para 91)

The Tribunal continued;

“We make the same finding even where the individual did not attend the meeting but was on a circulation list only for the minutes where the name is associated with an organisation.” (para 91)

It is anticipated that in the majority of cases the reliance on the published technical guidance referred to above will be sufficient to establish that names are indeed personal data. However the analysis above may assist case offices should a complainant raise the Tribunal’s approach in Harcup to argue that the information does not constitute personal data.

Reasonable Expectations

The Tribunal was guided by European Case law when considering what the reasonable expectations of the parties involved would be regarding the disclosure of personal data. In broad terms the Court of First Instance in the Bavarian Lager Case* established the principle that third parties, such as representatives of a trade organisation, who attend official meetings cannot have an expectation that their names will be kept private where their privacy is not adversely affected by the mere release of a record of who attended the meeting. This position was accepted by DBERR (see para 95).

However DBERR maintained that the Court of First Instance provided no guidance in relation to whether personal data attributing comments to individuals should be released or the seniority of officials about whose personal data could be released. The ICO argued that in light of FOIA there could be not blanket expectation of confidentiality but recognised that the there may be an unfairness if the names of junior employees were disclosed.

The Test

Having considered these arguments and the jurisprudence provided by both the Court of First Instance and a special report by the European Ombudsman on the same matter, the Tribunal (at para 101) applied the following test to the disputed information which should be followed by caseworkers in relation to the names of officials recorded in discussions between government departments and lobbyists.

• 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.
• Recorded comments attributed to such officials at meetings should similarly have no expectation of privacy or secrecy.
• In contrast junior officials, who are not spokespersons for their organisations or merely attend meetings as observers or stand-ins for more senior officials, should 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;
• 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.
• The extent of the disclosure in relation to the named official will be subject to the application of the test set out in the 6th condition, schedule 2 [DPA], in relation to the 1st data protection principle and 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.

For the sake of clarity the term ‘spokesperson’ is taken to be any official, of either the department or the lobbyist, whose job role involves representing the views of that organisation to an external audience and actively participating in such debates/dialogue. Essentially any official whose job role encompasses being a spokesperson should expect to be named in disclosures regardless of their seniority. It therefore seems likely that it will capture the majority of attendees except those junior staff with purely administrative duties and, exceptionally, those whose job role would not normally involve participation in such meetings but are standing in for more senior colleagues.

It’s clear from the third bullet point that generally speaking there would be no breach of the data protection principles if named individuals were associated with their actual contribution. It is noted that the third bullet point states that there will be ‘no’ expectation of privacy, although this establishes a strong rule of thumb, it may be rather overstating he point since the final bullet point recognises that it is still necessary to consider the nature of those comments. Where the comments simply reflect he views of the body that individual represents the information is unlikely to be exempt under s40(2). Similarly where the comments relates to the individual’s professional life then, again, it’s likely that the information would not be exempt under s40(2). If the information related to an individual’s private life then it is less obvious that disclosure would satisfy the tests established by the 6th condition of schedule 2. Having said that we consider that it will be very rare for such personal information to be included in the records of a meeting etc.

The test above was applied to the names of those attending a meeting. However considering the Tribunal’s comments at para 91 that the names of individuals on a circulation list where associated with an organisation was also personal data, the Commissioner’s view is that where names on a circulation list relate to either spokespeople or senior officials then those individuals should also expect their names to be disclosed.

Creekside Forum v ICO and DCMS (EA/2008/0065)

The Tribunal’s decision in Creekside Forum v ICO and DCMS broadly supports the approach set out in the above test. In this case, the requested information related to the issuing of a certification of immunity from listing for Borthwick Wharf in London, and included letters and communications to the DCMS which featured the names of a range of individuals. The Commissioner, in his decision notice, had found that all of the names could be withheld under regulation 13 (personal data) of the EIR. The Tribunal disagreed with the Commissioner, distinguishing the fairness of disclosure in relation to the capacity an individual wrote in.

Private individuals and junior civil servants

The Tribunal found that DCMS were entitled to withhold the names of private individuals, junior civil servants and some individuals representing third parties under regulation 13, concluding that they would have had an expectation of privacy (see paragraphs 64-67). In relation to civil servants, the Tribunal confirmed that the more junior a representative in an organisation, the less necessity there is to disclose their name and the more unwarranted the intrusion (paragraph 75). The Tribunal accepted that the role of junior civil servants is largely administrative, without significant responsibility, or a public profile or personal responsibility for policies and therefore should not be exposed to public censure (paragraph 79-80).

Individuals representing Third party organisations

However, for the majority of individuals representing third party organisations. the Tribunal found that disclosure would be fair. The Tribunal considered that there is a difference between an expert organisation who has been approached to provide an opinion, and a lobbying organisation which approaches the public authority as part of a campaign, or a commercial organisation who stands to gain by their involvement in the process noting that the former might be seen to be a more reluctant participant in the process (paragraph 76) (which presumably informed their decision as to which information would be disclosed).

The Tribunal’s principles for ordering disclosure of the names of individuals representing third party organisations were consistent with the test identified above, with particular focus on the seniority of the representatives and the fact that they were representing the views of an organisation and actively participating in dialogue, meaning that they would have no reasonable expectation of privacy.

The Tribunal concluded that it would not be unfair to disclose the information on the following basis:

"no individual working on behalf of or representing an organisation (including lobbying groups) would have an expectation that their details would remain private unless they expressed a concern. Being representatives of an organisation, there would be less general expectation of privacy. The contact details relate to work of those of the organisation rather than personal details end the individuals are accountable to the membership of company, and would expect some degree of scrutiny" (paragraph 70)

The Tribunal countered DCMS's point that it is the name of the organisation rather than individual names that are important, by noting that "rank, status, interests and qualifications of a person in an organisation are of relevance in assessing the weight given to the opinions" (paragraph 73) and that "knowing who is lobbying, who has been consulted, their seniority and role can add to the understanding of a substantive decision".

* Case reference T-194/04 — please note this is separate to the later judgement of the ECJ on the same case. Although the actual decision was overturned by the later ECJ judgement (ref C-28/08 P), the Commissioner considers that the Court of First Instance’s findings on reasonable expectations stand.