Labour & European Law Review Weekly Issue 290 11 October 2012
Under the Freedom of Information Act, public authorities have to disclose information unless the request falls within one of the exemptions. In Trago Mills v the Information Commissioner and anor, the information rights tribunal said that a council was justified in refusing a request for information about a severance agreement because it constituted personal data of a third party and was therefore exempt.
Over the years, the Council’s lead planning officer, X, had recommended that some of the applications by Trago Mills should be refused. In 2007, it applied for permission for a shop and petrol station which the Council was initially minded to approve until X took a different view, resulting in the submission of a modified scheme.
The chair of Trago Mills, Mr Robertson, complained about X’s conduct but an independent investigation by a firm of solicitors found that the allegations could not be substantiated.
In early 2010, Mr Robertson found out that X was taking early retirement, but thought this was just the Council’s way of hiding that X had been dismissed for misconduct. He told his solicitors to request information under the Freedom of Information Act (FOIA) 2000 so that he could show that his allegations about X had been justified.
The solicitors asked for details of X's severance package as well as a copy of his contract and remuneration during his employment. Although the Council provided a redacted copy of his contract, it refused the other information on the ground that it was exempt under section 40(2) FOIA (third party personal data).
The solicitors requested the information twice more without success and in September 2011, Trago Mills filed a complaint with the Information Commissioner.
Section 40(2) of the FOIA states that information is exempt information if it constitutes personal data of a third party, and disclosing it would contravene any of the data protection principles set out in the Data Protection Act 1998.
Decision of the information commissioner
The commissioner concluded that, although X held a senior role in the public sector and that his expectations of privacy were less than they would otherwise be, they nevertheless outweighed the arguments for disclosure.
The Council had therefore been entitled to reject the information request and the exemption applied. Trago Mills appealed to the information rights tribunal.
Decision of information rights tribunal
Dismissing the appeal, the tribunal pointed out that even without an express confidentiality agreement an individual would have a reasonable expectation that the terms of their severance package would be treated as confidential.
The question it had to consider, however, was not whether X’s severance package was a private transaction, but whether disclosure would represent an unwarranted interference with his “rights and freedoms”, based on the expectations of privacy held by a “reasonably balanced and resilient individual holding the position that X held with the Council”.
The tribunal said that it was clear from material submitted by the Council that X's departure and the terms of his severance package were not influenced in any way by conduct or performance issues. Even if Trago Mills had established that X had been guilty of 'wrongdoing in public office' the tribunal said this would only support a legitimate public interest if the wrongdoing had been so serious that the Council could be criticised for not having taken it into account when considering X's application for early retirement.
Although X was no longer employed by the Council, its duty to be transparent and accountable about the expenditure of public money did not outweigh the requirement to respect X's reasonable expectation of privacy. Disclosure would, therefore, breach the data protection principles