Tribunal backs refusal to disclose severance agreement for senior officer

The First-Tier Tribunal (Information Rights) has backed a council’s decision to refuse a freedom of information request asking for details of the severance arrangement entered into with a senior planning employee.

The Tribunal unanimously ruled that the information sought by the appellant, West Country retail business Trago Mills, was the personal information of the individual in question and disclosure would have breached data protection principles.

The background to the case was a long-running dispute between Trago Mills and Teignbridge District Council over planning issues affecting the company’s out-of-town shopping centre complex at Newton Abbot.

There had been particular difficulty in relation to an application for a development incorporating towers. Planning officers at the authority recommended refusal, but the application was approved by the development control committee.

An individual who was service lead for planning at Teignbridge at the time – only identified as X in the Tribunal’s ruling – played the lead role in the initial recommendation.

Trago Mills had a number of other disagreements with the council over planning matters, including in 2007 in relation to an application in respect of a shop and petrol filling station at the Newton Abbott premises.

A junior colleague of X was initially minded to approve the application. X subsequently became involved and took a different view, leading to the submission of a modified scheme.

Trago Mills was unhappy at this intervention. It did not appeal refusal of permission but the company’s chairman, Bruce Robertson, complained to the council about X’s conduct.

Teignbridge commissioned an independent investigation by a firm of solicitors to see if X had – as Trago Mills claimed – displayed prejudice or bias. The lawyers’ report, submitted in December 2009, found there was insufficient evidence to substantiate the allegations.

In early 2010, it emerged that X was to take early retirement as part of a council scheme for reducing staffing levels.

Trago Mills’ Robertson was suspicious, the Tribunal was told. He believed that the early retirement scheme and the confidentiality claimed in respect of the severance agreement reached with X was a “shield” to suppress the truth about the officer’s “misconduct”.

In his view, the council’s chief executive had put her name to an untruthful public statement when saying that the departures – five other senior members of staff were leaving at the same time as X – were voluntary.

Trago Mills instructed its solicitors to request information about X from Teignbridge through the Freedom of Information Act 2000.

Robertson told the Tribunal that he hoped this would get at what he saw as the truth about X’s departure and demonstrate X’s alleged incompetence. He added that he wanted to get an apology from the council.

The FOI request asked for full details of the remuneration X would receive in connection with the termination of his employment. It also requested a copy of his contract of employment and details of his remuneration package whilst in the council’s employment.

The council provided a redacted copy of the employment contract but refused to disclose other information on the grounds that it was exempt. It did give an indication of the salary range applicable to X.

Five months later Trago Mills’ lawyers wrote to the council requesting:

1. details of X’s severance package;
2. confirmation of the procedures followed in determining the filling station planning application; and
3. the name of the solicitors who compiled the independent report and details of the report itself.

On the first request, the council refused on the grounds that it was exempt under s. 40(2) and s. 41 FOIA. The local authority said it did not hold any information falling within the second request, and also refused to disclose the independent solicitors’ report.

A subsequent meeting between Trago Mills and the council about the company’s complaint and requests for information led to a warning of potential legal proceedings against the council and X.

Trago Mills’ law firm wrote again to the council in April 2011, asking for an internal review of the refusal to release the requested information. In response the council decided to disclose the independent solicitors’ report, but continued to reject the requests in relation to the severance package and the planning procedures.

A letter from Teignbridge’s chief executive in May 2011 included an assurance that X’s departure was wholly unrelated to the matters set out in the independent solicitors’ report.

Trago Mills subsequently filed a complaint with the Information Commissioner. During the course of the ICO’s investigation, the council accepted that its initial interpretation of the planning procedures request had been wrong. It then searched for and released documents recording how the filling station application had been dealt with.

The Information Commissioner concluded that while X held a senior role in the public sector, such that his reasonable expectations of privacy might be less than would otherwise be the case, they nevertheless outweighed the arguments for disclosure.

Trago Mills filed an appeal to the Tribunal in February 2012. At the hearing, the company argued that the council had conducted a flawed investigation into the planning procedures request and criticised the authority’s records deletion practices.

However, the Tribunal ruled that the council had gone to “quite extraordinary lengths” to be as certain as it could be that if there was further information in relation to the planning procedures part of the FOI request, it would have come to light. It said the issue of records deletion was not relevant to this appeal.

In relation to the severance package, the Tribunal concluded that the Information Commissioner had been correct to find that Teignbridge had been entitled to refuse that part of the company’s FOI request.

The Tribunal said:

• The issue of X’s conduct did not arise in the discussions between the council and himself about his departure. “It therefore carries no weight to support Trago Mills’ argument that there is a strong and legitimate interest in disclosing the requested information”;
• An argument that the disclosure sought would relate only to X’s public functions was “unsustainable, certainly in the absence of either proof or strong indications that issues about the employee’s wrongdoing had influenced either the decision to enter into a severance agreement or the terms of that agreement”;
• Even without an express confidentiality provision, an individual would have a reasonable expectation that the terms on which his employment came to an end would be treated as confidential;
• Even taking into account factors such as the fact that X was no longer employed by Teignbridge, so no working relationship would be jeopardised by disclosure, and that there were no charges or disciplinary proceedings known to be faced by him, “we do not find that the council’s duty to be transparent and accountable about the expenditure of public money outweighs the requirement to respect the former employee’s reasonable expectation of privacy”.
• Disclosure would have breached the data protection principles.

Welcoming the ruling, a spokesman for Teignbridge said: “We have been open and honest in dealing with this complaint, as we are with any issue. Therefore it is gratifying, but not surprising, that the Tribunal found there was no cover up and that we have been beyond reproach in the way we treated this request for information.

“An independent firm of solicitors and the Information Commissioner had already backed our approach, and we hope it is reassuring to the public that yet another independent organisation which protects the public interest has supported our stance.”

Trago Mills’ Robertson told This is South Devon: “I owe it to the district and not just myself to get to the bottom of it.

“If there is anything positive in all of this it is that the committee supported all of those applications in question upon their individual merits, and in so doing upholding the integrity of a reasoned and objective membership.”

Robin Hopkins of 11KBW was counsel for Teignbridge.