FREEDOM OF INFORMATION ACT 2000

Review of FOI requests re “Costs relating to the

resignation of the Chief Executive”

Summary

The complainant has requested information in respect of the financial arrangements relating to the recent termination of the employment of the Chief Executive.

Reviewer's Role

My role is to review the decision to refuse the supply of information and the processes followed.

The Request

On 15^th April the complainant requested the following information pursuant to the Freedom of Information Act 2000 (“the Act”):

“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 borne by SKDC because of the resignation of the Chief Executive.”

The Council responded to the applicant on 14^th May 2009 explaining that they had applied exemptions from our duty to disclose personal information (S.40 of the Act) and confidential information (S.41 of the Act).

The Council considered that the request related to personal data and releasing such information would breach at least one of the data protection principles by applying S40(2) of the Act and could breach confidentiality applying S41 of the Act.

However, the information in respect of pension arrangements and legal costs were disclosed in the reply.

It considered that the first data protection principle would be breached through disclosure of the information. This was, firstly, because it would be “unfair” to release the information as there was an expectation of confidentiality by the Chief Executive and, secondly would be unlawful, as to release the information would breach the first data protection principle.

In addition, the Council considered that to release the information would result in an actionable breach of confidence. The confidentiality exemption is an absolute exemption from our duty to disclose. Both the Council and the outgoing Chief Executive had agreed that the matter would be treated confidentially.

The Review

The complainant contacted the Council on the 22^nd May 2009 requesting an internal review of the handling of the FoI request.

“I am writing to request an internal review of South Kesteven District Council's handling of my FoI request `Costs relating to the resignation of the CEO'.

The response was inadequate because:

It was virtually word for word a copy of the response sent to the Grantham Journal.

I never made a request for information regarding the reasons why the Chief Executive resigned.

The argument that an employment confidentiality agreement takes precedence over council tax payers' right to information on public expenditure is spurious. I would be interested to understand how the council will account for this on its balance sheet and when this information will be available?”

My review will deal specifically therefore with the process followed and the FoI decisions made. (I will deal separately with the issues raised outside the specific FOIs).

Chronology

In order to undertake the review I have:-

Findings

Process

The Council undertook a review of several requests and it was considered that exemptions could apply relating to a range of issues but not all would apply to all requests depending on the wording of each.

In respect of the complaints and other requests an exemption panel met to consider how the exemptions might apply.

The reasoning behind the exemptions were documented after detailed consideration and each request was then considered in isolation and individual responses were drafted with the application of the generic exemptions. The complainant, along with others therefore received an individual letter addressing their specific requests which included the generic application of the exemptions relating to personal data and confidentiality. The request was considered individually.

Exemptions applied

Section 40(2)

The Panel's arguments for applying this exemption are detailed in the reply to the complainant and after careful examination of the evidence I am satisfied that there was and still is a reasonable expectation that details regarding the former Chief Executive's personal data would/will remain confidential.

I have also considered the case and precedents set in the cases of Calderdale Council and Doncaster College.

I agree that the relevant principle here is the first principle of the D.P.A. which requires that personal data shall be processed fairly and lawfully. Whilst any payments to employees is funded from the public purse and therefore there is a valid reason for tax payers to be provided with details about how their money spent, the precedents set by a previous decision (Calderdale Council) of the Information Commission argued that equally it should be recognised as to the generally high expectation of privacy in relation to financial arrangements between employee and employer.

In this case, the evidence I have reviewed shows that the third party had identified a clear wish to ensure that personal data is not disclosed. This is in addition to an assurance of confidentiality between the two parties. The confidentiality may also have been designed to protect the family of the Chief Executive.

I consider therefore that the disclosure of personal data relating to the outgoing Chief Executive would be unfair and would breach the first data protection principle.

Section 41 - Information provided in confidence

I have considered how this has been applied and the preposition that the third

party provided information in confidence. Whilst this is more difficult to apply, I have taken into account the guidance and it is by deduction of the circumstances and through evidence provided by the Council that information was provided from the third party and if disclosed that information could give rise to an actionable breach of confidence. It would be reasonable given the evidence that the confider was under the expectation that the information would only be used or disclosed in accordance with the confider's wishes. However the duty of confidence is not absolute and in assessing whether a breach of confidence is actionable we must consider issues of public interest. It is clear that the courts have taken the view that grounds for breaching confidentiality must be valid and very strong. A duty of confidence should not be overridden lightly. Particular weight should be attached to the privacy of rights of individuals. The democratically elected members are custodians of the public interest and have agreed to privacy.

I have also requested details regarding how the authority accounts for payments to its senior employees.

In the accounts, payments are recorded as part of the summary income and expenditure statements, in line with accounting practices. Individual transactions are not therefore available as part of this process but, in addition, the supporting notes to the accounts under the heading “Officer Emoluments” there is a requirement to show the number of employees whose remuneration was £50K or more (in bands of £10K). Each year the Council places adverts in local publications giving 2 weeks notice of the dates during which the accounts will be available to view. The viewing period normally takes place in July for the accounts closing on the previous March.

In conclusion, taking into account the guidance I agree with the decision to withhold specific details of the arrangement relating to the Chief Executive's departure using the exemption at S.41 of the Act.