Dear Mr Shorrock,

Re: Request for Information under the Freedom of Information Act 2000

Thank you for your request under the Freedom of Information Act 2000 (“the act”) dated 15^th April 2009 seeking:

Contractual costs and amounts relating to the recent termination of

the employment of the CEO.

Level of payments made to the outgoing chief executive in relation

to the termination of his contract and how these will be paid.

Pension arrangements and the payment arrangements made to the

outgoing chief executive.

Legal, administrative and associated costs bourne by SKDC because

of the resignation of the Chief Executive.

Contractual Costs, amounts, Payments and How They Will Be Paid.

The details of the Chief Eexecutive's departure are personal and confidential and we cannot disclose details of the arrangement. The Council has applied the exemptions from our duty to disclose personal information, (S40 of the act) and confidential information, (S41 of the act) regarding this part of your request. The reasoning is set out below:

S40 Freedom of Information Act 2000 - Personal Data

Section 40 of the act sets out various exemptions from the right to know for information that is personal data.

Personal data is defined at Section 1 of the Data Protection Act 1998 and includes data which relates to living individuals who can be identified from that data. Details of an employee's financial settlements would fall within the scope of S1 of the Data Protection Act 1998.

Your request relates to personal data of a third party (the former chef executive). The Council can refuse to release information relating to third parties if to do so would breach at least one of the data protection principles by applying (S40(2) of the act.

The relevant data protection principle is the first principle which states that data that the Council holds must be `fairly and lawfully processed'.

The Council considers that the exemption at S40(2) of the act is engaged in respect of the specific details of the departure.

Unfairness

The data subject has not consented to the release of personal data relating to his departure from the Council. An employee would have a reasonable expectation that details relating to their employment would be kept confidential. The Council is aware that the seniority of an employee's position affects the reasonable expectation of privacy. Generally the more senior the position the more likely it is that the such information be disclosed. Despite the employee being the former Chief Executive there is evidence that he has an expectation of confidentiality which supports the Council's view that disclosing information relating to his departure would be unfair and unlawful. The Council has considered the tone of press reports following his departure and considers that release or publication of information relating to the departure could be detrimental not just to the employee but also to his family and consequently unfair according to the first data protection principle.

Unlawfulness

It would be unlawful for the Council to release details of an employee's departure as the parties have an expectation of confidentiality. The Council's view is that the former chief executive has a reasonable expectation of privacy and to breach the same would be unlawful and in breach of the first data protection principle.

Conclusion

The Council has considered the Information Commissioner's decisions in the in the cases of Calderdale Council of the 16 May 2007 (50074995) and Doncaster College on the 19^th March 2008 (FS50165354).

In the Doncaster case the data subject was considered to have a reasonable expectation that details of his severance would be released. The Information Commissioner cited the significant legitimate interest in the public knowing the amount of money paid to the data subject when terminating his employment. The information Commissioner noted that no detriment to the data subject had been identified.

In Calderdale the financial arrangements for the early retirement of a senior member of staff were found to be exempt from disclosure under S40 (2). The Information Commissioner identified that the third party had identified a strong preference that his personal data not be disclosed to the complainant.

The Council considers the facts of the current case align more closely to the Calderdale decision as the outgoing chief executive has agreed reciprocally that the matter be treated confidentially leading to a clear expectation of confidence. Furthermore there is potential for detriment to the outgoing chief executive should details of the arrangement be revealed. There is already significant discontent within the local press regarding the departure much of which relates to him personally. Most latterly the Grantham Journal has reported that he is selling his house (Grantham Journal 17.04.2009) the Council does not want to incite further discontent which could be directed at the outgoing chief executive and his family.

As a result of the reasoning above the Council cannot release details of the chief executive's departure as to do so would breach the first Data Protection principle.

S41 Information Provided in Confidence

In order to rely on this exemption the Council must be able to demonstrate that that the information was provided by another individual (subsection 1a) and that its disclosure would result in an actionable breach of confidence (subsection 1b). Section 41 is an absolute exemption meaning the Council does not have to consider whether the public interest in disclosure of the information outweighs the exemption of our duty to disclose, although there is a public interest test relevant for determining whether an individual can bring an actionable breach of confidence and we have to establish that the data subject could bring an actionable breach of confidence before the exemption applies.

The outgoing chief executive has agreed with the Council and the Council has agreed with the outgoing chief executive that the matter will be treated confidentially. He was an employee of the Council at the time of his departure although the matter related to his private affairs after his employment with the Council came to an end. As the outgoing chief executive, he was not acting in the interests of his official capacity, the matter relates to his private affairs after leaving the Council and he has an expectation that his private interests would be protected.

The Council is legally bound by that confidentiality. An actionable breach of confidence against the Council could be brought if we disclose details of his departure. The information has the necessary quality of confidence as it relates to private matters between the Council and a previous employee protected by an understanding of confidentiality. The Council could face a civil claim for common law breach of confidence if it discloses specific details of the departure.

The Council recognises the public interest test which determines the possibility of an actionable breach of confidence. In the Council's view there is a high threshold before the public interest in disclosure of the terms of the departure would override his expectations of privacy.

The Council is aware that the public is interested in the details of the departure but to release the same would be an unjustified compromise of the right of privacy. The Council must be able to protect the private interests of former employees through the use of confidentiality. If the Council were to breach the confidentiality we would undermine our ability to deal with matters privately and sensitively which could subsequently affect our wider ability to effectively conduct our Human Resource business.

As a result of the reasoning above the Council has withheld specific details of the arrangements relating to the chief execuitve's departure using the exemption at S41 of the act.

Pension Arrangements

The departure of the chief executive has had no affect on the pension fund and the pension arrangements are personal information which are exempt from disclosure under section 40 (2) of the act.

Legal Associated and Administrative Costs.

In addition to officer's acting in the course of their normal duties which we are unable to quantify for this specific issue, the Council received specialist legal advice from an external law firm. The total cost of that advice relating to the chief executive's departure was £5052.50.

If you have any queries or concerns then please contact either Lucy Youles or Paul Rushworth at Legal Services, South Kesteven District Council, Council Offices, St. Peter's Hill, Grantham, Lincolnshire, NG31 6PZ, telephone 01476 405080.

Further information is also available from the Information Commissioner at:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Telephone number: 01625 545 700

Or by visiting the Information Commissioner's Office website at:

www.informationcommissioner.gov.uk

Yours sincerely,

Mrs L Youles

Legal Services Manager

(Monitoring Officer)

Mr R Shorrock

[FOI #10398 email]