Transparency and professional lives

Morris Hill and Adam Morrison examine the latest FOI decision – this time involving the headteacher of a school – where the tribunal had to balance personal and professional lives.

The General Regulatory Chamber of the First-tier Tribunal (“FTT”) has ruled that information about a headteacher’s absence and complaints made to the school should be withheld from disclosure, as, under the Freedom of Information Act 2000, such entries constitute “personal” data and their disclosure would be unfair.

Background

The Freedom of Information Act (“FOIA”) 2000 provides an avenue under section 40(2) for the non-disclosure of certain types of information, provided it falls into the category of “personal” data. To meet this criterion, data usually has to relate to a living individual who is, or can be, identified from the data itself or from the combination of that data and other information that is in, or is likely to come into, the possession of the data controller.

In this case, a FOIA request was made to establish the details of a headteacher’s absence from school, along with details of any disciplinary proceedings against him, copies of communications concerning his departure, and details of any complaints against the headteacher and in general in the two academic years preceding the request.

The Information Commissioner had previously ruled that all information, but for information relating to the headteacher’s salary paid, from public funds, during his absence, should be withheld. The FTT had upheld that decision, but that ruling was appealed to the Upper Tribunal which in turn held that the FTT had provided insufficient reasoning for its decision to uphold the Information Commissioner’s decision and ordered the case be remitted for further consideration.

Decision

In rejecting the appeal, the FTT produced a detailed analysis of the factors taken into consideration when assessing whether the disclosure would be fair to the data subjects, namely, the views of the headteacher and the parents and pupils who had made or were the subject of complaints.

Although it may be deemed reasonable for the most senior members of a school’s staff to expect scrutiny in their professional life and provide transparency in their personal lives, where it impacts the running of the school, a balance needs to be struck between the public’s right to know and invasion of privacy.

In reaching their decision, the FTT outlined the wider implications disclosure would have provided to the primary data subject before offering several “fairer” alternatives, such as the use of audits, investigations or disciplinary proceedings that would, they said, achieve the same levels of scrutiny and transparency with far less of a damaging impact to the parties involved.

The FTT identified a number of ways in which such disclosure would negatively impact upon the data subjects, amongst others, and which, ultimately, swung the balance of the case in favour of protecting the rights of the headteacher. These can be summarised as follows:

• Disclosure could lead to distress for anyone affected by the disclosure, such as a complainant or witness.
• The “mosaic effect” where two pieces of seemingly innocuous pieces of information could be linked to identify an individual meant the information could not be redacted.
• There is a risk of unfounded reputational damage where a complaint may turn out to be unfounded, malicious or mistaken.
• There may be a need for a “safe space” in which to conduct any investigation or disciplinary action which disclosure may jeopardise.
• Data subjects would expect information relating to complaints, investigations and disciplinary proceedings to be treated confidentiality, in accordance with the school’s complaints policy.
• Disclosure is not the only method of scrutinising how complaints are managed. Those affected who feel their complaints are not being handled appropriately can escalate the matter to governors, the local authority or unions.

Comment

This case serves as a reminder to public organisations to observe good data privacy principles. It is particularly interesting to note how the FTT has sought to achieve a balance between both personal and professional lives and how disclosure would have jointly affected them and it will be important in future for such organisations to ensure that their employees are adequately briefed on the levels of scrutiny and transparency that is to be expected in their respective roles. The decision will also prove useful to the HR teams of many of these organisations as it provides several preferential methods of achieving transparency while still being able to protect the rights and freedoms of the data subject.

Morris Hill is an Associate and Adam Morrison is a Paralegal at Weightmans. Morris can be reached on 0151 242 7990 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Adam can be contacted on 0151 242 1430 or This email address is being protected from spambots. You need JavaScript enabled to view it..