Nothing to Declare….?

The First-Tier Tribunal recently looked at the extent to which local government officers' interests should be disclosed following a freedom of information request. Dan Lucas looks at a very significant ruling.

Slowly but surely the transparency agenda within the public sector is becoming a universal rubric for justifying disclosures for the common good. Indeed, the public interest has seen notable scalps which previously would have lurked in the murky back-waters of bureaucracy had it not been for the change in the public consciousness about such matters. Notable examples we are all well aware of include: MP’s expenses and the Additional Costs Allowance regime, the publishing of “senior officers” salaries, and also, publishing local spending data above £500.

However, despite the unabated tide rising in favour of disclosure, the timely question perhaps needs to be asked whether such disclosure is a bridge too far. This seems more so in the local government context and in light of the First Tier Tribunal’s recent decision in John Greenwood and Bolton Metropolitan Borough Council v Information Commissioner (EA/2011/0131 and EA/2011/0137)(17-2-2012)

It comes without surprise that those in more senior positions tasked with strategic decisions about the expenditure of public funds should be subject to a greater level of scrutiny about their pay, job title and job role. Indeed this is endorsed by the Local Government Group, the Information Commissioner and the legislature. As a matter of law it is also required by regulation 7 of the Accounts and Audit (England) Regulations 2011 for “senior employees”.

Pay and job title is of course but one matter, but what about local government officer interests? Can it be “right” that officers have their personal interests disclosed via the Freedom of Information Act regime, and where do we draw the line: all officers; senior officers; principal officers; chief officers…? The Tribunal juggled these matters in the Bolton decision.

The Request

On 13 October 2010 John Greenwood (“the complainant”) via the Freedom of Information Act 2000 (“the Act”) asked for: “….copies of all declarations of interests for all current Bolton Councillors. Please supply copies of any similar declarations held by the council for all/any senior council Officers”.

For the present purposes we need only concern ourselves with the officers’ interests part of the request. Bolton MBC finally responded on 3 December 2010 and stated that the information was exempt under section 40(2) of the Act. At the complainant’s request the matter was passed to the Information Commissioner (ICO) to investigate compliance or otherwise with the Act.

The ICO’s Decision

The declarations from officers were as a matter of course personal data for the purposes of the Act. The crux of the matter before the ICO however concerned the balance between competing interests; on the one hand the need for transparency in local government affairs and decision making; and on the other the protection of personal data. Fundamentally section 40(2) of the Act excludes the disclosure of personal data if disclosing it would breach one of the data protection principles of the Data Protection Act 1998 (“DPA”). Schedule 1, Part 1 of the DPA, particularly the first data protection principle that requires processing to be conducted “fairly and lawfully”.

The commissioner at paragraph 27 of his decision notice explained that an important factor in deciding this is whether “senior officers” had a reasonable expectation that their information maybe disclosed to any member of the public when they provided it to the Council. Of course they may have been told this was the case from the outset, or in the alternative the commissioner asked would it have been reasonable for such officers to understand that this may have been the case. The Council supplied to the ICO extracts of its constitution which required officers above a certain salary band to disclose any interests which might conflict with their employment or the Council’s interests. It was decided that: “The Commissioner considers that it is unlikely that an officer would expect such information which would provide such levels of detail of their private lives to be disclosed in response to a request under the Act” (at para 31). The key finding here being that the officers’ declarations clearly contained a level of detail comprising home addresses, memberships of organisations and/or clubs, private businesses and so on. These interests not only concerned the officers themselves, but via implication an officer’s family. This could provide a basis from upon which an individual member of the public could calculate where and when that officer (and possibly his/her family) may be.

Interestingly, in finding that it was “unlikely” that an officer would expect such information to be disclosed in response to an FOIA request (para 31), because of “seniority”, the commissioner concluded that “it is likely that such Senior Officers would have some expectations that they would need to carry out their tasks transparently and be accountable for the decisions they take” (para 34, my emphasis). On first reading this seems to be a master class in semantics, but it seems a fair assumption for the ICO to make in this instance - with seniority usually comes more responsibility. The ICO also concluded that the disclosure of certain aspects of the officers’ declarations would be “extremely intrusive” into the private lives of the officers involved (para 39).

Against these findings the commissioner turned to look for factors which favoured a disclosure which would render dissemination “fair” for the purposes of the first data protection principle. The second half of the ICO’s decision is a fair exegesis of the “Nolan principles” pervading good governance. In the round, the commissioner concludes that the public interest is such that disclosure via redaction is warranted. The ICO therefore agreed to the following being withheld from disclosure:

  • Address or description of land or property in which you have an interest, the nature of the interest and the use to which the land is put;
  • List any organisation with which you have Membership/association, including clubs and societies;
  • List any voluntary bodies of which you have Membership or association;
  • Please give any further information you may wish to record about your business or financial interests.

The commissioner therefore allowed the following to be released:

  • Names;
  • Department;
  • Section;
  • Name and address and nature of additional business, or other employment;
  • Name and address of Company, firm or other body or individual of whom consultancy is undertaken and nature of the consultancy with an indication of frequency or volume of such work;
  • Name and address and nature of business of each company or other body of which you are a Director, with an indication of whether it is in a paid or unpaid capacity;
  • Name and address and nature of business of each firm with which you are a partner;
  • Name and address and nature of business of each company in which you hold shares;
  • Name and address of the organisation to whom you are engaged on a retainer basis and nature of the retainer.

He recognised that these disclosures concern matters outside of officers’ professional duties, but given they are senior officers who take decisions which affect the community and that they are responsible for budgets and expenditure of public money, it was less reasonable for senior officers to expect non-disclosure in respect of their interest declarations (para 58). He also concluded there was a “strong public interest” in the disclosure of such affairs.

The First Tier Tribunal

The matter was heard before the Tribunal over two days on 21 and 22 November 2011. Both Bolton MBC and Mr. Greenwood appealed the ICO’s decision. Mr. Greenwood appealed on the basis that redacting and withholding information about club, organisational and society interests could implicitly also withhold business interests of officers, given that such memberships may have a business element involved (for example the Freemasons). Bolton appealed on the grounds that firstly, disclosure would be unfair to officers and additional 3rd parties whose data is contained within the withheld information, and that Schedule 2, condition 6 is not satisfied as disclosure is unwarranted and outweighs any legitimate interests of 3rd parties, and finally that disclosure would breach the second data protection principle as disclosure under FOIA is inconsistent with the purposes for which it was obtained.

Bolton’s constitution stipulated that “The Monitoring Officer will maintain a register of declared interests. The register will be accessible only to the Monitoring Officer and other authorised Officers for the purposes of ensuring that proper standards of conduct are maintained”. Unsurprisingly Bolton advanced that officers in light of such strong wording would not have expected their interests to be disclosed and that “otherwise than under this Act” means that the Tribunal cannot take into consideration disclosure under FOIA in its assessment of the expectations of the Officers. The Tribunal’s decision reflects that they accept s40(3) of the FOIA prevents a public authority from circumventing the provisions of the DPA but the “climate of transparency” (para 20) is material in assessing the reasonable expectations of officers even in the context of a statement purporting to limit the dissemination of data. Further, the Tribunal acknowledge that section 40 did not rest solely upon an individual’s expectations but also includes considerations of fairness. Here the Tribunal relied upon the High Court decision of Corporate Officer of the House of Commons [2008] EWHC 1084 concerning MPs’ Additional Costs Allowance and how the High Court expressly held that seeking to “contract-out” of a legislative regime created with disclosure in mind was wholly unreasonable:

“Once legislation which applies to Parliament has been enacted, MPs cannot and could not reasonably expect to contract out of compliance with it, or exempt themselves, or be exempted from its ambit. Such actions would themselves contravene the Bill of Rights, and it is inconceivable that MPs could expect to conduct their affairs on the basis that recently enacted legislation did not apply to them, or that the House, for its own purposes, was permitted to suspend or dispense with such legislation without expressly amending or repealing it. Any such expectation would be wholly unreasonable” (para 33).

The Tribunal also turned its attention to the salary banding within Bolton’s constitution and how “principal officer grade 8” equated to a salary banding of £27,000. The Tribunal reconciled this salary with the definition that Central Government defines as “senior” under the Joint Negotiating Committee being £58,200 and above. The Tribunal therefore accepted that the principal officers of the council falls outside that of what is interpreted as senior, whereas those officers categorised as “chief officers” (beyond principal officer banding all the way through to CX) would fall within the definition of “senior officer”, recalling here that seniority is relevant to assessing the expectations of officers.

As for condition 6 of Schedule 2 of the DPA which provides that the processing is “necessary” for the purposes of a legitimate interest pursued by the data-controller, except where such processing is “unwarranted” by reason of prejudice to the “rights and freedoms” or legitimate interests of the data subject, the Tribunal relied upon the lack of disclosure of officer interests as being a flaw and disclosure would allow for public scrutiny. In this vein however, it decided that the disclosure of home addresses was unfair and unwarranted and agreed with the ICO on this point. The Tribunal allowed disclosure across all officer levels and salary banding of names, departments, sections and job titles as this related to the officers’ professional lives in the public service. The Tribunal however departed from the ICO concerning the disclosure of “other” principal officer information given they would have had no expectation that this would be made public and their expectation was reasonable in light of their level of seniority and the lines drawn by central government. Furthermore, the intrusion would have been unwarranted at this level given the checks and balances of line managers and internal monitoring. The Tribunal agreed with the ICO in relation to “chief officers” and allowed disclosure of “professional” interests (additional businesses, employment, consultancy work engaged upon, directorships, share-holdings and retainers) but withheld interests declared concerning non-professional memberships of clubs, associations, societies, voluntary memberships.

Commentary

It should be recalled from the outset that local government officers and most public sector employees are unelected individuals. Secondly, there exists no statutory compulsion or requirement to keep a register of officer interests – it only arises in the spirit of good governance and observance of the Nolan principles. The only reference I can find to officer interests is contained in section 117 of the Local Government Act 1972 and when disclosure is required if an officer has an interest in any proposed contract the council wishes to enter into. Thirdly, the Tribunal acknowledged the “flaw” within the system of maintaining the register of officer interests and how such interests are voluntary in nature due to the lack of a regulatory regime directing mandatory registration.

In this vein the Tribunal referenced the Corporate Officer of the House of Commons case and how “contracting out” of a legislative disclosure requirement was unreasonable. Of course, the MPs’ Additional Costs Allowance system was found to be vulnerable to exploitation and fraudulent claims and thus it is “right” and “just” that this system be subject to public scrutiny. However, there as of yet have been no such breaches of the officer interest system which perhaps warrants the same level of public scrutiny and/or disclosure. It seems that tide has shifted from a reactive disclosure of a compromised regime (ACA), to a proactive and pre-emptive disclosure of a potentially vulnerable system which contains a degree of risk (officer interests).

Is it fair that local government should face further scrutiny because of the legislative oversights of the law-makers? The Tribunal inevitably found a “flaw” given there existed no statutory scheme governing officer interests; a simple case perhaps of damned if we do and damned if we don’t. However, the band-aid of disclosing the interests of “senior officers” and the names, departments and job titles of all officers because of an inherently “risky” system (or lack of system) for now shall suffice. A bridge too far for the FOIA regime? The question now needs to be asked given that public scrutiny and the disciplinary gaze is firmly set upon the financial and banking sectors. Oh - of course - they are not “public authorities”, silly me!

Dan Lucas is Havant Borough Council’s Senior Litigation Lawyer. He has worked for local government legal teams for more than six years.