Freedom of Information
Internal Review decision
Internal Reviewer
Polly Ralph, Adviser – Data Protection
Reference IR2010011
Date
17 May 2010
Requested information
On 17 March 2010, the applicant made a request (BBC IPC reference RFI20100401)
under the Freedom of Information Act 2000 (FOIA) for access to the following
information:
Copies of the annual appraisals for all Afghan stream grade 7 staff going back for
the past seven years (2003-2010)
The applicant advised that it would be acceptable if names and staff numbers were
redacted in order to protect the identity of individuals.
Robert Johnston, of BBC People, responded to the request in the first instance. Mr
Johnston advised that the information requested was being withheld under section
40(2) of FOIA. This was on the basis that personal information about living
individuals is exempt from disclosure to a third party, if such disclosure would
breach one or more principles of the Data Protection Act 1998. Mr Johnston
considered that the individuals who work, or have worked, at the BBC do not
expect that their personal/employment details will be disclosed in response to a
FOIA request, and that it would be unfair to do so. Therefore, disclosure would
breach the first data protection principle, which provides that organisations must
process personal data fairly.
On 7 April 2010, the applicant sought an internal review of Mr Johnston’s decision.
The applicant reiterated that all personal information could be redacted from the
appraisal documents in order to protect individual staff members’ identities.
Issues on review
The issue on review is whether the BBC’s decision to withhold the requested
information under the personal information exemption, section 40(2) of FOIA, was
appropriate.
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link to page 2
Decision
Section 40 FOIA – Personal Information Exemption
Sections 40(2) and 40(3)(a)(i) of FOIA stipulate that information is exempt from
disclosure under FOIA if it constitutes personal data under the DPA and its
disclosure would contravene any of the data protection principles.
Section 1(1) of the DPA defines personal data as
‘data which relate to a living individual
who can be identified from those data or from those data and other information which is in
the possession of…the data controller.’
A key element in determining whether information is ‘personal data’ is whether an
individual can be
identified from that information.
In this instance, the number of individuals in the Afghan Stream grade 7 group of staff
is small; it currently comprises less than 25 individuals. Further, BBC People have
clarified that that group of individuals can be split into further groups, which have
slightly different roles. This is a relevant factor, as the smaller the group, the greater
the risk that individuals within that group can be identified.
I am also mindful that the content of those appraisal documents will be specifically
tailored to each individual. The appraisal documents contain information about each
individual’s duties, their achievements of the past year, and their performance in
their role. Given this level of detail, and in light of the small number of individuals in
the group, I consider that individual staff members are identifiable from the
information contained in the appraisal documents.
For this reason, I am satisfied that the appraisal documents constitute personal data
for the purposes of the DPA.
I must now consider whether disclosure would contravene any of the data
protection principles.
The first data protection principle provides that personal data must be processed
fairly and lawfully, and must not be processed unless one of the conditions in
Schedule 2 of the DPA is met.
To assist me in determining whether it would be ‘unfair’ to release the appraisal
documents to the applicant, I have considered a previous decision of the Information
Commissioner.
1 In that decision, the Information Commissioner considered it was
1 Freedom of Information Act 2000, Decision Notice, 25 November 2009, Reference: FS50167506.
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important to consider, first, the context in which the information was produced and,
second, whether the individuals concerned would have had any expectation of
disclosure.
Annual performance appraisal is an intrinsically confidential process, and indeed it
must remain so in order to be effective. In this context, I do not consider that the
members of the Afghan Stream would hold any reasonable expectation that
information relating to their individual performance appraisal documents would be
disclosed in response to a FOIA request. In the absence of such an expectation, I
conclude that the disclosure of this information would be unfair and in breach of the
1st principle of the DPA.
Can the information be anonymised?
The applicant has argued that if individual names and staff numbers are redacted
from the performance documents, this will render the remaining information
anonymous and therefore individual privacy rights can be protected.
As noted above, the body of the appraisal documents contain detailed information
about each individual’s duties, their achievements of the past year, and their
performance in their role. Given this level of detail, and in light of the small number
of individuals in the group, I do not consider that it is possible to anonymise the
appraisal documents simply by redacting names and staff numbers.
Decision
For the reasons set out above, I agree with the initial decision made in this case to
apply the section 40(2) FOIA exemption in respect to disclosing the
Copies of the
annual appraisals for all Afghan stream grade 7 staff going back for the past seven years
(2003-2010).
Appeal Rights
If you are not satisfied with the outcome of your internal review, you can appeal to
the Information Commissioner. The contact details are: Information Commissioner’s
Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF; Telephone
01625 545 700 or
www.ico.gov.uk
Polly Ralph
Adviser – Data Protection
17 May 2010
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