Line to take - LTT164 - Fairness - Casework Examples for LTT163

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  • Section/Regulation: s40
  • Issue: Fairness - Casework Examples for LTT163
  • Source: Policy Team
  • Details: n/a
  • Related Lines to Take: LTT163, LTT165
  • Related Documents: n/a
  • Contact: HD
  • Date: 19/01/2010
  • Policy Reference: LTT164
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

The following casework examples link to and should be read in conjunction with LTT163 on Fairness.

Further Information

Casework example (1) — Names of Individuals who suggested IRA were responsible for the Northern Bank Robbery (FS50074788)

The Northern Ireland Office claimed it would be unfair to disclose the identity and opinions of individuals on the question of the attribution of the IRA as being responsible for the Northern Bank Robbery in 2004. The Commissioner found that it would be unfair to disclose this information having taken into account the specific security considerations at the time in Northern Ireland and the need to ensure the safety of the individuals involved. The Commissioner found that these factors weighed more heavily than the argument that the seniority of the public servants involved justified the disclosure.

Casework example (2) — Names of Anti-Fascist Officials (FS50092069)

Sunderland City Council argued that it would be unfair to disclose the names and contact details of the Tyne and Wear Anti-Fascist Association officials and certain Council staff The Council provided the Commissioner with evidence of previous incidents of harassment following disclosure of similar information and also explained why it had concerns for the safety of its own staff The Commissioner found that the legitimate interest in knowing the names of those in receipt of public funds was not more significant than the distress that any disclosure would cause to the individuals concerned and so found that disclosure would not be fair.

Casework example (3) — CV & Interview Notes for House of Commons vacancy (FS50139317)

The House of Commons argued that it would be unfair to disclose a copy of the interview notes and CVs of the other candidates for a job for which the complainant unsuccessfully applied as it would distress the applicants if their personal details were placed in the public domain. The House also pointed out that even if the names were redacted it would be clear to others such as their current employer who the individuals were, and this employer may not know of the applicant’s intention to leave their current job. The Commissioner found that disclosure would be unfair.

Casework example (4) — Confirmation of Names of Officers Investigated (FS50222787)

The Independent Police Complaints Commission argued that it would be unfair to confirm or deny whether two named officers had been subject to an investigation. The complainant referred to two articles naming specific police officers on the BBC news website — one of which made no reference to an IPCC investigation whilst the other article cited a press statement made by the IPCC in which it had confirmed that an unnamed Metropolitan Police Service Officer had been required to resign following an investigation. However there had been no confirmation from the IPCC of the names of the officers involved. The Commissioner accepted that it is “possible for the articles in the press to be linked to the IPCC’s statement but this does not amount to a public statement - any linking would be speculation. The Commissioner does not consider that a press article, containing speculation, is the same as a formal confirmation or denial by the IPCC” (para 24). The Commissioner found that it would be unfair to disclose this information.

Information Tribunal decision (5) — David Armstrong v IC & HMRC (EA/2008/0026)

In 2005 the applicant, an investigative journalist, requested documents referred to in court in the 2001 trial of Abu Bakr Siddiqui. Albeit that the case dealt with s30, the Tribunal’s approach supported the Commissioner’s position on s40. The Tribunal were clear that “even if the ... information had entered the public domain by virtue of having been referred to during the Siddiqui trial in 2001, it does not necessarily follow that it remains in the public domain” (paragraph 85).

The Tribunal went onto note its agreement with the Commissioner that, “knowledge obtained in the course of criminal trials is likely to be restricted to a limited number of people and such knowledge is generally short-lived” (paragraph 85) and that “[e]ven if the information had previously entered the public domain, that is not in itself conclusive of whether the public interest weighs in favour of disclosure, it is merely one consideration to be weighed in the public interest balance” (paragraph 86).

Casework example (6) — Details of Severance Package (FS50074995)

Calderdale Council argued that it would be unfair to disclose the grounds for retirement, the final salary and any other financial details in relation to the severance package paid to a Council Director a couple of years before the request was made. The Commissioner acknowledged that it may be said that unfairness may be lessened by the time that has elapsed but found that the passage of time would not prevent the identification of the third party and nor would it remove the potential for distress to be caused by a later release of this information. In weighing up a number of factors, the Commissioner decided that it would be unfair to disclose this information.

Casework example) — FS50123489 Information Tribunal decision — EA/2007/0021

The Commissioner decided that a list of names of individuals who had received an Anti Social Behaviour Order (ASBO) in the Camden area, whether current or expired, could be disclosed, subject to certain redactions. However this decision was not upheld by the Information Tribunal (ref: EA/2007/0021) who stated that disclosure of this data would be unfair on the grounds that “...publicity long after the making of an order... is quite different from identification and denunciation when or shortly after the order is made...” (para 28). The Tribunal went onto say that later publicity would be an “unjustified humiliation” to individuals who had reformed their behaviour and that in any event the mechanism for punishing ASBO breaches was not additional publicity but rather criminal prosecutions.

Casework example (8) — Internal Investigation into Police Officer (FS50170381)

The complainant made a request for various pieces of information about an internal investigation into a named officer which he believed had taken place. The Commissioner considered what information was in the public domain as opposed to what information the particular applicant may have been aware of and as of the date of the decision notice there was no information that confirmed or denied whether the named officer was subject to an internal investigation and/or a disciplinary hearing. The public authority also informed the Commissioner that it did not believe that any information was in the public domain. The Commissioner therefore found that it would not be fair to confirm or deny whether any information was held.

Casework example (9) —Negotiation of Reinstatement of Ali Dizaei (FS50088977)

The Commissioner of the Metropolitan Police Service argued that it would be unfair to disclose the A CAS negotiation settlement regarding the reinstatement of Superintendent All Dizaei. The decision notice comments as follows: “where media coverage had taken place without the active or consenting involvement of the subject...this would limit the weight that could be given to this factor. However, in this case both the public authority and, notably, the third party (All Dizaei] have actively participated in this coverage (para 51)...the third party has actively sought publicity...the third party has given interviews about this matter to a number of media outlets. That the third party and, to a lesser extent, the public authority has participated in the media coverage is a valid and strong argument that disclosure could not be characterised as unfair” (para 52).

Casework example (10) —Identity of External & Internal University Examiners (FS50155365)

Queen’s University in Belfast argued that it would be unfair to disclose the identities of internal and external examiners of their admissions test to the Institute of Professional Legal Studies partly because as the University does not provide its examiners with any information in relation to the potential disclosure of their identities, there was an expectation of confidentiality on the part of the examiners. The Commissioner accepted that the examiners may have an expectation that this information would not be disclosed but this was not a reasonable expectation in the circumstances which were that the internal examiners were drawn from a pool of Institute tutors and so would already be publicly associated with the Institute whilst the external examiners were nominated by various legal bodies who listed such nominations on their websites and therefore the Commissioner did not accept that the external examiners would automatically expect that their names would not be disclosed. Thus the Commissioner found that all the names could be disclosed.

Casework example (11) — Event Attendees’ Contact Details (FS50101815)

The complainant requested the contact details for those delegates who had attended an event organised by the Eastern Cheshire NHS Primary Care Trust as part of a public consultation and the public authority sought only to withhold the contact details where the delegates had provided personal contact details, i.e. residential addresses, personal email accounts. The Commissioner acknowledged that whilst the delegates attended the event in their professional capacity they nonetheless provided this personal/private information which the Commissioner did not accept related to their professional lives. The Commissioner also found that the delegates’ reasonable expectation would be that this information would only be used to facilitate the meeting i.e. to provide meeting minutes. Thus the Commissioner found that it would be unfair to disclose this information.

Casework example (12) — Names of Members of Cabinet Committee (FS500177136)

The complainant wrote to the Cabinet Office to request information regarding a Cabinet Committee that was formed in order to consider data sharing within the public sector. The public authority claimed s40 to withhold the names of the ‘junior’ civil servants who were members of the secretariat responsible for the Committee. The Commissioner found that “civil servants at the Grade 7 level typically have managerial responsibility and whilst they are not members of the “Senior Civil Service” are still relatively senior employees. Equally, members of the Civil Service Fast Stream expect to be given challenging and intensive job appointments which are designed to prepare them for future careers in the Senior Civil Service. With this in mind, the Commissioner feels that these members of staff would have a reasonable expectation that their names would be disclosed in the course of carrying out their work and would be able to cope with any undue pressure that may arise through the disclosure of their names and job titles” (para 51).

Casework example (13) — Job Titles and Salaries of ICO Senior Staff (FS50163927)

The complainant made a request for the job titles and salaries of the five most senior staff at the ICO. In reaching a decision about his own office, the Commissioner found that “it is reasonable to conclude that the five individuals would expect some details about their salary to be placed in the public domain but that it is also reasonable to assume that they would not expect their exact salary details to be made publicly available (para 18). Whilst disclosure of a salary band may infringe on a person’s privacy there is a distinction between this and disclosure of the exact salary details requested. Disclosure of the exact salary details would clearly lead to a greater infringement into the privacy of the individuals as it would reveal the specific details of the person’s financial situation. It is therefore reasonable to consider that disclosure of this information would cause the individuals unwarranted distress or unjustified damage”. (para 19)

Casework example (14) — List of Council Owned Properties (FS50066606)

The complainant made a request for a fist of addresses of council properties owned by Braintree District Council. The Commissioner found that this information was personal data but that it would not be unfair to disclose it because although the Commissioner accepted that there would be “unfairness to individuals if they were publicly identified as members of a vulnerable group, for instance asylum seekers, benefit recipients or women who have left violent partners, he does not consider that there would be any general unfairness to individuals in being identified as council tenants. In taking this view, he is mindful of the low inherent sensitivity of the data and that in practice the fact that a particular property is or is not owned by the Council will be generally known to neighbours or because it is part of a known council housing estate” (para 31).

Casework example (15) — Informer’s Name and Substance of Complaint (FS50093233)

The complainant requested to know the name and substance of a complaint about a potential unauthorised change in use of the land adjacent to (a specified address) and the erection of a fence restricting access. The Commissioner accepted that “where a person informs a public authority about their concerns regarding a potential breach of planning regulations they would not normally expect their identity to be disclosed to the individual allegedly committing the breach.” (para 18).

Casework example (16) — Barclays Bank’s Involvement with Columbian Drugs Money (FS50147637)

The complainant requested information from the Financial Services Authority regarding Barclays Private Bank’s involvement with Columbian drugs money following an article in the Sunday Times which indicated that senior managers at the Bank had been questioned by the National Crime Squad after a transatlantic investigation identified five accounts linked to a Columbian money laundering scam. The Commissioner found that this information was personal data and that the disclosure of it would be unfair because it would cause unwarranted distress to the individuals because there had been no formal determination of guilt. The Commissioner also accepted that the information about the family members involved in the investigation had been received from third parties, making it unlikely that they would even know that the FSA held this information and thus they would not have any expectation that it would be disclosed.

Casework example (17) — Use of University Computers to Access Extremist Material (FS50197666)

The University of Bradford was asked to provide information in relation to the use of campus computers to access extremist material by four named students but the University argued that it would be unfair under s40 to disclose a list of student’s names along with the times and dates they accessed campus computers. The Commissioner noted that the information was obtained because the named students were enrolled at the University and required access to the computers as part of their course. However given that the log in and log out reports were originally obtained by the University for operational, monitoring and security purposes, the students would not have expected that this information would be disclosed. Further, as the information related to the student’s private life and did not encompass any form of public duty or function, the Commissioner found that disclosure of the requested information would not be fair.

Casework example (18) — Details of Individuals Paid Compensation (FS50090631)

Transport for London argued that it would be unfair to disclose details of the offers of compensation made to residents of a certain road under the Land Compensation Act following the building of the M11 Link Road. The Commissioner notes that TfL did not inform residents at any stage that the details of their claim or final settlement would be made available to a third party(^). The Commissioner also took into account the element of secrecy surrounding the process due to TfL‘s attempt to protect public monies by negotiating settlements on a case-by-case basis. Given this culture of secrecy, the residents would not have expected that this information would be released. Further, the Commissioner found that as this information related to the individuals’ homes and personal finances and by extension their private and family fives, it would be unfair to disclose it.

(^) = Albeit that it is not necessary to specifically refer to a disclosure under the FOI.

Casework example (19) — Report into Disciplinary Action Against Magistrate (FS50086866)

The complainant requested a copy of the Report that was produced following the disciplinary hearing of a named Magistrate. The Ministry of Justice (formerly the DCA) argued that it would be unfair to disclose this report because the Magistrate had received an assurance that the Report would remain confidential. The hearing and following Report were also conducted in accordance with certain Directions which stated that such hearings would be held in confidence and that any views expressed as part of those proceedings would be treated as confidential. In addition, the Commissioner accepted that Magistrates have a right to keep details of any disciplinary matters private just like any other individual. Thus, in all the circumstances, the Commissioner found that it would be unfair to disclose the requested information.

Casework example (20) — Names/Addresses of Financial Contributors to Purchase of Art Work (FS50109038)

The Tate Gallery cited s40 in relation to a request for the names and addresses of private individuals who contributed to the purchase of the art work entitled ‘The Upper Room’ by Chris Ofili as well as the amount of their contribution and other biographical information which could lead to their identification. The Tate argued that whilst the donors in question are already known to the public through its publication scheme (albeit that there are no references associating donors with specific pieces or the amounts contributed), it is their policy to only acknowledge donations over the value of 10% of the overall purchase price. The Commissioner therefore found that it would not be in the reasonable expectations of the donors that details of their donation would be made public and furthermore given that they were acting purely in a private capacity, the Commissioner found that it would be unfair to disclose the requested information.

Casework example (21) — Name of Solicitor who Provided Advice (FS501566539)

The complainant requested the name and address of the solicitor who had provided advice to the Child Support Agency in relation to an application for a special payment referral. The public authority’s policy was not to disclose the names of individual government lawyers below the level of the Senior Civil Service and thus given that the solicitor was in a relatively junior role at the time, his/her expectation would have been that their name would not be disclosed. The solicitor in question was also contacted and asked whether they would consent to disclosure but refused. Thus, the Commissioner found that it would be unfair to disclose the requested information.