Mr Craig Cummings
Date: 4th December 2019
Via E-mail:
Our reference: EDIR: 25451
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Your reference:
Dear Mr Cummings
Freedom of Information (Scotland) Act (2002) – Request for Review
I write with reference to your recent email in which you asked us to review the outcome of
your request for information under the Freedom of Information (Scotland) Act 2002
(“FOISA”) and our subsequent e-mail exchange in which you provided clarification of the
details included in that request.
The purpose of the review is for the Council to consider again the response provided to a
request for information it has received. In undertaking the review, I can decide to uphold
the response either with or without variation or can substitute the response for a new
one.
To undertake this review, I have examined all the previous correspondence relating to your
request. I have also spoken with the Information Rights Officer who handled your request
and to the relevant officer in our Human Resources Service. Further, I have considered
the Scottish Information Commissioner Decision Notice 166/2019 which addressed a
similar request made previously to the Council.
Your request asked for the job description and job evaluation scores for the post of senior
solicitor. The response provided to you advised that this information is otherwise
accessible to you, given your role as a Unite representative within the Council, and
therefore under Section 25 of FOISA is exempt from release on this occasion.
I note within your request for review that you disagree with the application of the Section
25 exemption. Further, you highlighted the time which has passed since you asked the
HR Service for this information under business as usual processes and raised data
protection concerns about the confirmation you have been asked to provide to the HR
service. I can confirm that I have considered all that you have written as part of my review
and will comment on these matters below.
As you will know, the City of Edinburgh Council and the recognised Trade Unions have in
place a ‘Working Together Protocol’. The protocol sets out the way that the Council and
recognised Trade Unions will work together to achieve shared and common interests and
the behaviours expected from each other. One expected behaviour is that all sides will
I n f o r m a t i o n G o v e r n a n c e , S t r a t e g y & C o m m u n i c a t i o n s D i v i s i o n
L e v e l 2 . 1 W a v e r l e y C o u r t , 4 E a s t M a r k e t S t r e e t , E d i n b u r g h E H 8 8 B G
T e l 0 1 3 1 5 2 9 3 4 5 9 E - m a i l r e v i e w @ e d i n b u r g h . g o v . u k
“participate constructively”. To achieve this behaviour the protocol recognises that both
sides will
“share information openly”. As was upheld by the Scottish Information Commissioner in his Decision Notice 166/2019,
“the job evaluation scores were reasonably obtainable by the Applicant otherwise than by
making a request for the information” under the Working Together Protocol. Therefore, I
have approached my review from this established position, and have then moved to
determine whether the matters you have raised in your review request challenge this.
I note that you indicate that you requested the job description and job evaluation factor
scores from the HR Service on 20th August 2019. My understanding, having discussed
this matter with HR, is that you were asked to confirm that you required this information for
the purpose of representing a member, and to date, you have been unwilling to provide
this confirmation.
In considering whether the length of time that has passed since you asked HR for this
information has made it unreasonable for the Council to expect you to access data in this
way, I have paid careful attention to the wording from the Working Together Protocol that
all sides will
“participate constructively
” and that both sides will “share information openly”
(my emphasis added). I must advise that I do not consider it reasonable for your non-
engagement with HR to be grounds on which it can be said that the otherwise accessible
route is no longer reasonably available to you. Indeed, this other route remains available
to you and only requires you to fulfil the expectations of the protocol to progress. Further,
until otherwise confirmed, I consider it reasonable for the Council to assume that it is in
your Trade Union role that you require the information that you have requested.
Finally, I have considered the data protection concerns that you have highlighted in your
review request. The Unite Privacy Notice states that the union will process its members
personal data for several purposes, one of which is to “provide you with support,
assistance, advice and/or representation in an individual or collective case”. To this end, I
do not accept that the request for confirmation made by our HR service asked you to
breach your members data protection rights or your obligations under data protection
legislation towards them. Your members will, in my assessment, have a reasonable
expectation that, to provide the advice and representation available, their Trade Union will
engage with their employer and that this will include the processing of their personal
information, including trade union membership information.
Therefore, it is the conclusion of my review that, because of your role as a Unite
representative in the Council there is in place a way that you can access the job description
and job evaluation factor scores without having to request it under FOI legislation. Despite
your non-engagement with this arrangement to date, this route remains available to you
and it is, in my assessment reasonable for the Council to conclude that, at present and in
the absence of further clarification from you, section 25 of FOISA is properly applied to
your request. In addition, a Section 25 exemption is an absolute exemption and therefore
I am not required to consider the public interest test.
In conclusion, I have upheld the FOISA response previously issued to you. That concludes
my handling of the review.
If you are unhappy with this review outcome you have a right of appeal to the Scottish
Information Commissioner. You must submit your complaint to the Commissioner within 6
months of receiving this review response. The Commissioner can be contacted at:
The Office of the Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
Telephone: 01334 464610
Fax: 01334 464611
Website
www.itspublicknowledge.info/Appeal E-mail
: xxxxxxxxx@xxxxxxxxxxxxxxxxxx.xxxx Please note that, once the Commissioner provides you with a decision on any application
made to him, you have the right to lodge an appeal against the decision on a point of law
to the Court of Session.
Yours sincerely,
Fiona Smyth
Information Governance Unit