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

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  • FOI/EIR: FOI, EIR
  • Section/Regulation: s40, reg 13
  • Issue: Naming Officials representing Lobbyists and Public Authorities
  • Source: Information Tribunal
  • Details: DBERR v ICO & FoE
  • Related Lines to Take: LTT148, LTT149
  • Related Documents: EA/2007/0072 (DBERR)
  • Contact: RM
  • Date: 27/04/2009
  • 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 Bavarian Lager Case (which is discussed in more detail below for those interested) 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 Bavarian Lager Case 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 Bavarian Lager Case 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, 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.

The Bavarian Lager Case

The details of the Bavarian Lager Case are included to assist case officers who want to familiarise themselves with the case. Generally speaking however it is anticipated that case officers will be able to rely on the authority provided by the Tribunal in para 101 of its decision when considering cases concerning the dialogue between a public authority and lobbyists.

Very briefly the history of the Bavarian Lager Case is as follows. The European Commission (EC) had considered whether the UK Government had breached a European treaty on the import of alcohol. As part of the EC’s investigation a meeting was held between the EC, the UK government and a trade organisation. Ultimately the EC decided not to pursue proceedings against the UK. The EC then received a request for the names of the trade organisation’s representatives who attended the meeting under a statutory access regime providing a right of access. The EC refused the request, in part, under an exemption respecting the privacy of individuals. The applicant then complained to the European Ombudsman as a result of which some additional information was released and the Ombudsman made a special report to the European Parliament. In this special report the European Ombudsman concluded that;

...there was no fundamental right to supply information to an administrative authority in secret and that Directive 95/46 [the European data Protection Directive on which the DPA is based] did not require the Commission to keep secret the names of persons who submit views or information to it concerning the exercise of their functions.” (as quoted at para 97 of the DBERR case)

He went onto to write to the EC’s President and express his concern that;

data protection rules are being misinterpreted as implying the existence of a general right to participate anonymously in public activities. This misinterpretation risks subverting the principle of openness and the public’s right of access to documents, both at the level of the Union and in those Member States where openness and public access are enshrined in national constitutional rules” (as quoted at para 97 of the DBERR case)

However the EC still withheld the names of 5 individuals who had refused to consent to their names being disclosed. This resulted in the applicant pursuing the matter in the Court of First Instance (CIF), a court of the European Union which has jurisdiction over actions taken by natural or legal persons against institutions of the EC and actions by member nations against the Commission (appeals from the CIF are to the European Court of Justice).

It is this case, heard by the CIF, which is commonly known as the Bavarian Lager Case. The CIF noted the European Ombudsman’s position as quoted above when setting out the background to the dispute. And later when setting out its findings as to whether the disclosure of the names would affect the privacy of those involved it commented that;

As the Commission itself has indicated, the persons present at the meeting of 11 October 1996, whose names have not been disclosed, were present as representatives of the CBMC [the trade organisation] and not in their personal capacity. The Commission has also indicated that the consequences of the decisions taken at the meeting concerned the bodies represented and not their representatives in their personal capacity.
In those circumstances, this Court finds that the fact that the minutes contain the names of those representatives does not affect the private life of the persons in question, given that they participated in the meeting as representatives of the bodies to which they belonged. Moreover, as noted above, the minutes do not contain any individual opinions attributable to those persons, but positions attributable to the bodies which those persons represented.
In any event, disclosure of the names of the CBMC representatives is not capable of actually and specifically affecting the protection of the privacy and integrity of the persons concerned. The mere presence of the name of the person concerned in a list of participants at a meeting, on behalf of the body which that person represented, does not constitute such an interference, and the protection of the privacy and integrity of the persons concerned is not compromised.” (as quoted in para 94 of DBERR).

The CIF ultimately ordered the EC to disclose the names that had been withheld.

(1) Harcup EA/2007/0058

(2) Durant Michael John Durant v FSA Court of Appeal Jul 2003 [2003] EWCA Civ 1746