Bullying in North Yorkshire County Council

Yabootoyou made this Freedom of Information request to North Yorkshire County Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by North Yorkshire County Council.

Dear North Yorkshire County Council,

This request is being made to make the public at large and people in each authority aware of which councils are the worst offenders or the better examples when it comes to bullying in the workplace. All councils have very similar anti-bullying / dignity at work policies, but there seems to be a difference in the level of bullying. This is intended to statistically show those differences.

1) How many employees of your authority have
made an
official complaint of harassment and bullying at work since the 1st April 2009?

2) How many of these complaints were upheld in favour of the
complainant?

3) How many of those which were not upheld in favour of the
complainant went on to Appeal?

4) How many of those that went to Appeal were found to favour the
complainant?

5) How many complaints went on to an Employment Tribunal?

6) How many of these were found to uphold the complaint?

7) Out of how many of those allegations (the number given to question 1) did the complainant of
bullying claim that the bullies were telling lies?

8) How many staff does your authority have and what is the current population within your authority's area?

Yours faithfully

Mr Lewis

yabootoyou

North Yorkshire County Council

Thank you for contacting North Yorkshire County Council (NYCC). We confirm
that we have received your correspondence.
 
If you have submitted a new Freedom of Information (FOI) or Environmental
Information Regulations (EIR) request to NYCC - we will contact you as
soon as possible if we need any more information from you to respond to
your request. If we do not need any more information we will pass your
request onto the appropriate officer to respond. A response will be sent
to you as soon as possible, and within 20 working days as required by the
relevant legislation.
 
If you have requested an internal review of an FOI or EIR response sent to
you by NYCC or otherwise expressed dissatisfaction about an FOI or EIR
response – we will respond to you as soon as possible and within 20
working days, in accordance with best practice guidance.
 
If you have raised a data protection concern about the way in which NYCC
has handled your personal information – we will respond to you as soon as
possible and within 20 working days, in accordance with legal
requirements/best practice guidance.
 
If you have asked to be removed from a mailing list – we will forward your
request onto the relevant department for action.
 
If your correspondence relates to an existing case - we will forward it to
the relevant officer for consideration and action as required.
 
Copied correspondence - we do not respond to correspondence that has been
copied to us.
 
For any other enquiry – NYCC will contact you shortly.
 
If your enquiry is urgent and you request an immediate response please
call the information governance team on 01609 532526.
 
Yours faithfully
 
The information governance team

Nicola Jefferson, North Yorkshire County Council

2 Attachments

Dear Mr Lewis

 

Thank you for your recent FOI request. 

 

North Yorkshire County Council has a Resolving Issues at Work Policy which
aims to settle all issues in the shortest time, with the least possible
formality and appropriate levels of confidentiality, as close to the point
of origin as possible.

 

Some issues likely to be dealt with through this policy include:

•             Relationships at work (with colleagues/manager)

•             Equalities e.g. discrimination

•             Harassment and bullying

•             Health and Safety

•             Terms and conditions of employment

 

Please find attached a copy of this policy. Below are the answers to your
questions - please note that we only hold data going back to January 2012

 

1)      How many employees of your authority have  made an official
complaint of harassment and bullying at work since the 1st April 2009? 

There were 35 cases

 

2)      How many of these complaints were upheld in favour of the 
complainant?

6

 

3)      How many of those which were not upheld in favour of the 
complainant went on to Appeal? 

Fewer than 5 

 

4)      How many of those that went to Appeal were found to favour the 
complainant?

Fewer than 5

 

5)      How many complaints went on to an Employment Tribunal? 

0

 

6)      How many of these were found to uphold the complaint? 

0

 

7)      Out of how many of those allegations (the number given to question
1) did the complainant of  bullying claim that the bullies were telling
lies?   

0

 

8)      How many staff does your authority have and what is the current
population within your authority's area?

Current Headcount is 20,522 (inc Schools) Current population is 601,500
(ONS mid 2014 population estimate)

 

Where the numbers are so low that it may identify individuals or make it
possible that those who already know, or can deduce, the identities of
those concerned would learn facts about them that it would be unfair for
the council to disclose, we have stated that there are fewer than 5. We
are withholding this information under section 40 (2) of the Freedom of
Information Act 2000 which exempts personal information from disclosure if
disclosure would breach one or more principles of the Data Protection Act
1998. In this case we consider that disclosure would breach the first
principle, namely that personal information must be fairly and lawfully
processed and must meet one of the conditions for processing as provided
by schedule 2 of the Act. In this case we consider that the disclosure
would be unfair and unlawful and none of the conditions for processing
would be met.

 

I have attached a copy of the appeals procedure for your information.

 

Kind regards

 

Nicola

 

_______________________________________

Nicola Jefferson, Leadership Support Officer / PA to Justine Brooksbank

 

 

 

show quoted sections

Dear Nicola Jefferson,

You may have your "Resolving Issues at Work Policy" but a guess at the figures of the number of accusations and success rate against the population, probably puts you unfortunately quite high up the league table of bullying, which will be made public in due course.

Yours sincerely,

Yabootoyou

Dear Nicola Jefferson,

I would like to add the following question to my request.

Q9) Out of the number in the response to question 1, how many of
the complainants said that they had been called "a loner"?

Yours sincerely,

Mr Lewis

Yabootoyou

Nicola Jefferson, North Yorkshire County Council

Hello Mr Lewis

I will find out the answer and respond in due course.

Kind regards

Nic

show quoted sections

Infogov - Veritau, North Yorkshire County Council

Dear Mr Lewis

 

Thank you for your request for information of which we acknowledge
receipt.

 

Your request has been passed to the appropriate officer to provide a
response as soon as possible, and in any event within 20 working days, as
required by the relevant legislation.

 

Kind regards

 

Paul Atkinson, for

 

Information Governance Manager

North Yorkshire County Council

01609 533219 [1][North Yorkshire County Council request email]

 

 

 

show quoted sections

Nicola Jefferson, North Yorkshire County Council

1 Attachment

Dear Mr Lewis

Thank you for your further email regarding complainants who said they had been called a loner.

I can confirm that the Council holds this information. Unfortunately I am unable to provide you with the figure because of the low numbers involved. As explained in my earlier email, figures of 5 or less are withheld because the numbers are so low that it is possible that those who already know, or can deduce, the identities of those concerned would learn facts about them that it would be unfair for the Council to disclose.

Personal information is exempt from disclosure under section 40(2) of the Freedom of Information Act 2000 (FOIA) where disclosure would breach one or more principles of the Data Protection Act 1998. In this case we consider that disclosure of the low figure would breach the first principle, namely that personal information must be fairly and lawfully processed and must meet one of the conditions for processing as provided by schedule 2 of the Act. In this case we consider that the disclosure would be unfair and none of the conditions for processing would be met.

I attach again a copy of the Council’s appeals procedure for your information.

Kind regards

Nic Jefferson

show quoted sections

Dear North Yorkshire County Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of North Yorkshire County Council's handling of my FOI request 'Bullying in North Yorkshire County Council'.

Since your refusal to issue information further to the "less / fewer than 5" criterion common amongst councils, I wish to point you to an ICO decision issued against Rutland Council (available on the whatdotheyknow website) where the same questions relating to bullying and harassment were asked. I therefore believe you should release the information. The basic summary at the start of the ICO decision is as follows and I believe the same "anonymised" rule applies to you.

"Decision (including any steps ordered)

1. The complainant submitted an eight-part request for information about harassment and bullying complaints in the workplace. Rutland County Council (the ‘Council’) provided some information, but refused the remainder citing sections 40(2) of FOIA, personal information, and 12, the cost exclusion. The complainant was concerned only with the Council’s reliance on section 40(2) which was applied to parts 2 to 6 of his request.

2. The Commissioner’s decision is that the Council has incorrectly applied the exemption for personal data at section 40(2) of FOIA to parts 2 to 6 of the request, as the withheld information is sufficiently anonymised to take it out of the definition of personal data.

3. He therefore requires the Council to take the following steps to ensure compliance with the legislation.

 Disclose the withheld information as provided to the Commissioner for parts 2 to 6 of the request as set out in paragraph 5.

4. The Council must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.

Reference: FS50614409 "

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/b...

Yours faithfully,

Yabootoyou

North Yorkshire County Council

Thank you for contacting North Yorkshire County Council (NYCC). We confirm
that we have received your correspondence.
 
If you have submitted a new Freedom of Information (FOI) or Environmental
Information Regulations (EIR) request to NYCC - we will contact you as
soon as possible if we need any more information from you to respond to
your request. If we do not need any more information we will pass your
request onto the appropriate officer to respond. A response will be sent
to you as soon as possible, and within 20 working days as required by the
relevant legislation.
 
If you have requested an internal review of an FOI or EIR response sent to
you by NYCC or otherwise expressed dissatisfaction about an FOI or EIR
response – we will respond to you as soon as possible and within 20
working days, in accordance with best practice guidance.
 
If you have raised a data protection concern about the way in which NYCC
has handled your personal information – we will respond to you as soon as
possible and within 20 working days, in accordance with legal
requirements/best practice guidance.
 
If you have asked to be removed from a mailing list – we will forward your
request onto the relevant department for action.
 
If your correspondence relates to an existing case - we will forward it to
the relevant officer for consideration and action as required.
 
Copied correspondence - we do not respond to correspondence that has been
copied to us.
 
For any other enquiry – NYCC will contact you shortly.
 
If your enquiry is urgent and you request an immediate response please
call the information governance team on 01609 532526.
 
Yours faithfully
 
The information governance team

Infogov - Veritau, North Yorkshire County Council

Thank you for your request for a review of our response to your FOI N0350.

Your request has been logged and we will respond in due course.

Kind regards

Paul Atkinson, for

Information Governance Manager
North Yorkshire County Council
01609 533219 [North Yorkshire County Council request email]

show quoted sections

information.governance@veritau.co.uk,

Dear Mr Lewis
 
I have reviewed the council's decision to apply the "less than five"
formula to two parts of your request. I am grateful for your reference to
the ICO's recent decision on a very similar recent request to Rutland
County Council, but I have decided to uphold the council's refusal.
 
There are two main reasons:

* there are other arguments to be put, in addition to those referred to
in the decision notice; and
* the lack of any public interest in disclosing exact numbers.

 
The ICO decision was based on applying the "Motivated Intruder" test. This
imagines a person with no prior knowledge, and tests what he or she might
find out in order to identify the individuals concerned. However in a
council like North Yorkshire there are likely to be individuals who do
already know something about those data subjects such that they may
recognise them from the statistic, and thus deduce something about them.
 
For example a fellow employee may know two things: that a certain person
has been to an appeals tribunal, and that there has only been one appeal
in a certain period. If he learns that only one appeal case concerned
bullying, then he can deduce that the person he knows had alleged
bullying. This amounts to an indirect disclosure of a fact which is unfair
to that person. Even if the numbers of appeals cases is more than one, but
less than (say) five, our putative employee can have some confidence
(greater than 20%) that he has learned about alleged bullying of his
colleague. The better he knows him the more confident he may be. This is
also unfair to the data subject.
 
I consider that it is quite likely that there will be fellow employees who
have some partial knowledge of the sort outlined above, and that indirect
and unfair disclosure is likely to occur. The Section 40(2) exemption was
properly applied.
 
There is no public interest test applicable to Section 40 - the issue is
one of compliance with the data protection principles and especially that
of fairness. However fairness is a close cousin of the public interest.
Consider confidentiality - it is obviously unfair to disclose that a
confidential complaint was of bullying - yet it would be a defence, if
accused of such a breach, to say that it was in the public interest to
have done so.
 
I have therefore considered the public interest. Your request stated that
you wished to compare councils’ experience of these claims, presumably to
see if there is a wide variation. For North Yorkshire, you now know that
certain types of claim are very few – less than five. That’s good enough
to make the comparison. Exact numbers would lend only spurious accuracy;
the difference between two, and three or four is not statistically
significant in a population of 22,000 employees, or even of 300 councils.
Even if councils’ statistics are not widely spread – perhaps if all
councils report less than five – then you and the public will know all
that is necessary to form a view about the overall incidence of bullying.
 
Section 14(1) deals with vexatious requests. By the way the ICO guidance
makes clear that it must be the request, not the person making it, which
is to be judged. The guidance goes on to quote from a relevant Court of
Appeal judgement as follows:
 
“the starting point is that vexatiousness primarily involves making a
request which has no reasonable foundation, that is, no reasonable
foundation for thinking that the information sought would be of value to
the requester or to the public or any section of the public”.
 
Workplace bullying is certainly a matter of public interest, and the
Council is very willing to disclose what it did. However a request for
exact numbers is of no value, as explained above, and is vexatious.
 
In summary, we may estimate that the risk of indirect disclosure, as
described in relation to Section 40(2) above, is small. But the effect of
such a disclosure on the individuals concerned is great, and we must
aggregate the two in any risk assessment. But the decisive factor is that
there is no value, or public interest, which outweighs that aggregate
risk. The Council therefore applies Sections 14(1) and 40(2) and maintains
its refusal.
 
You may if you wish complain about my decision to the Information
Commissioner by email at [1][email address] or by post to:
First Contact Team
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
 
I hope this is satisfactory. Yours sincerely
Robert Beane
 
Robert Beane
Information Governance Manager
Veritau Limited | Veritau North Yorkshire Limited
Assurance Services for the Public Sector
Telephone:  01609 533219
E-mail:  [2][email address]
For further information about the company please visit our website
[3]www.veritau.co.uk
 
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Dear [email address],

I have just complained to the ICO about your refusal with the following email and sent the all of the correspondence on this site to them.

"I wish to complain against North Yorkshire County Council.

I disagree that the exemption applies and I see nothing convincing to distinguish this case from the Rutland one, only basic theory.

In its review the council says that the value of the information is of no value and the decision therefore vexatious.  I refute this and it is not vexatious because I have done the same this with some other councils, therefore it is not against just NYCC nor against all councils, just some where merited.  When I sent the Rutland case to others who had refused ont he "less / fewer than 5" principle, from memory probably about 10 or so councils, I think all (certainly most) subsequently provided the information.

The information has proven very reliable and the value of this has come to light during the process of receiving replies from councils.  There is a general link between the number of bullying cases and the percentage belief in the victim for example.  Somerset had a low number of alleged bullying cases (6) for which it found for 5 of them (83%) being the best large council.  Cheshire East had a correspondingly high number of bullying cases (62) with a 30% or so success rate from memory.  Drawing a graph shows an exponential link when all of my first wave councils (county, unitary, large boroughs) are put together.  Indeed, I attach the graph!  The figures are therefore useful and this applies also to questions 3 and 4 which are part of it all, part of the whole picture, indeed part of the same process (appeal stage at council stage following on from questions 1 and 2, rather than being the difference between council and employment tribunal stage for example).

On the issue of time, I went to review in September following the Rutland decision, going back on the other replies where a decision had been refused due to the "less / fewer than 5" principle.  Regardless of any issue as to whether the review was in time or not, NYCC have recently responded to that review and have therefore legitimised it and it should be addressed."

Yours sincerely,

Mr Lewis

Yabootoyou

Yabootoyou left an annotation ()

The Decision Notice below (not vexatious then it seems).

Reference: FS50649572
Date:
Public Authority: Address:
Complainant: Address:
o
lnformation Commlssioner! Ofl¡ce lco.
Freedom of Information Act 2OOO (FOIA) Decision notice
6 June 2OI7
North Yorkshire County Council County Hall Racecourse Lane Northallerton DL7 8AL
Peter Lewis
1
Decision (including any steps ordered)
The complainant has requested statistics from the council relating to incidents of harassment and bullying within the council. The council provided some information but refused to provide more specific numbers for parts 3,4 and 9 of the request on the grounds that section 40(2) applied (personal data). When the complainant asked for a review the council applied section L4(L) to the complainant's insistence that specific numbers are disclosed (vexatious). During the course of the Commissioner's investigation the council also argued that section 12 was applicable to part 9 of the complainant's request (cost exceeds appropriate limit).
The Commissioner's decision is that council was not correct to apply section L4to the request. She has also decided that it was not correct to apply section 40(2) to withhold the information. She has however decided that it was able to apply section 12 to refuse part 9 of the request.
The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation. . To disclose the information falling within parts 3 and 4 of the request to the complainant.
The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the
2
3
4
1
Reference: FS50649572
a
lnlormatlon Commissioner's Oflke lco.
5 Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.
Request and response
On 12 November 20L5 the complainant wrote to the council and requested information in the following terms:
"This request is being made to make the public at large and people in each authority aware of which councils are the worst offenders or the better examples when it comes to bullying in the workplace. All councils have very similar anti-bullying / dignity at work policies, but there see/ns to be a difference in the level of bullying. This is intended to statistically show those differences.
1) How many employees of your authority have made an official complaint of harassment and bullying at work since the lst April 2009? 2) How many of these complaints were upheld in favour of the complainant? 3) How many of those which were not upheld in favour of the complainant went on to Appeal? 4) How many of those that went to Appeal were found to favour the complainant? 5) How many complaints went on to an Employment Tribunal? 6) How many of these were found to uphold the complaint? 7) Out of how many of those allegations (the number given to question 1) did the complainant of bullying claim that the bullies were telling lies? B) How many staff does your authority have and what is the current population within your authority's area?
The council responded on B December 2015. It provided the complainant with a copy of its policy "Resolving issues at work". It clarified that it only holds data dating back to January 2012, and answered the above questions from that date as follows: 1) There were 35 cases 2)6 3) Fewer than 5 4) Fewer than 5 5)0 6)0 7)0
6
7
2
B) Current Headcount is 20,522 (inc Schools) Current population is 601,500 (ONS mid 2014 population estimate)
Where the numbers are so low that it may identify individuals or make it possible that those who already know, or can deduce, the identities of those concerned would learn facts about them that it would be unfair for the council to discloset we have stated that there are fewer than 5. We are withholding this information under section 40 (2) of the Freedom of Information Act 2000 which exempts personal information from disclosure if disclosure would breach one or more principles of the Data Protection Act 7998...'
B On 9 February 20L6 the complainant then made an additional request for:
"I would like to add the following question to my request
Reference: FS50649572
10.
tco. I lnformatlon Comm¡sslons's Of ice
9
Q9) Out of the number in the response to question 7, how many of the complainants said that they had been called "a loner"?"
The council responded on 7 March 2OL6 and stated that it holds the relevant information but that it could not provide this to him as the number would be less than 5. It said that section 40(2) therefore applied to the information for the same reasons it had provided previously.
On 6 September 2016 the complainant wrote to the council and asked it to carry out a review of its response to the whole request following a decision of the Commissioner which had found that similar information should be disclosed.
11. Following an internal review the council wrote to the complainant on 4 October 2016.It said that it had reviewed the ICO decision but decided that the circumstances were different in the case raised by the complainant. It therefore upheld its previous response.
12. It also applied section 14(1) to the request for more specific numbers to be provided for parts 3,4 and 9 of the request (vexatious request).
3
Reference: FS50649572
I
lnformôl¡on Comm¡ssloner! Off ke tco.
Scope of the case
13. The complainant contacted the Commissioner on 6 October 2016 to complain about the way his request for information had been handled.
L4. He considers that the council was wrong to apply section 40(2) to withhold specific figures. He also argues that the council was wrong to apply section 14 as the request has a value and purpose.
Reasons for decision
Section 14(1)
15. Section 14(1) of the FOIA provides that a public authority is not obliged to comply with a request that is vexatious.
16. The term 'vexatious' is not defined in the FOIA. The Upper Tribunal (Information Rights) considered in some detail the issue of vexatious requests in the case of the Information Commissioner v Devon CC & Dransfield [2015] EWCA Civ 454 (14 May 2015)). The Tribunal commented that vexatious could be defined as the "manifestly unjustified, inappropriate or improper use of a formal procedure".The Tribunal's definition clearly establishes that the concepts of proportionality and justification are relevant to any consideration of whether a request is vexatious.
17. The Upper Tribunal also found it instructive to assess the question of whether a request is truly vexatious by considering four broad issues: . the burden imposed by the request (on the public and its staff); . the motive of the requester;
18.
. the value or serious purpose of the request; and . añy harassment or distress of and to staff.
Consistent with that Upper Tribunal decision, which established the concepts of 'proportionality' and 'justification' as central to any consideration of whether a request is vexatious, the Commissioner's guidance on section L4(I) states:
"section 14(1) is designed to protect public authorities by allowing them to refuse any requests which have the potential to cause a disproportionate or unjustified level of disruption, irritation or distress".
4
Reference: FS50649572
o
lnformat¡on Comm¡s5¡oner's Off lce lco.
19. The Commissioner's guidance recognises that sometimes a request may be so patently unreasonable or objectionable that it will obviously be vexatious, but that in cases where the issue is not clear-cut the key question to ask is whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress.
20. This will usually mean weighing the evidence about the impact on the authority and balancing this against the purpose and value of the request. 2I. The council did not apply section 14 to its initial response to the request It applied it when the complainant made his request for review. The Commissioner therefore notes that much of the work required to respond to the request had already been carried out before the council considered it appropriate to apply section 14.
22. The council argues that the request is primarily vexatious as providing specific figures to the complainant in response to his request would serve no value of purpose. It argues that it has already provided the information which the complainant needs in order to meet his stated intentions. It said that the complainant's request for review of this point demonstrates (at that point) that the request is vexatious.
23. It highlighted a quote from theTribunal in the Dransfield case in which the tribunal found that:
"the starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester or to the public or any section of the public". (para 68)
24. It argued that whilst workplace bullying is a matter of public interest, and the incidence of this is of pubic importance, its initial disclosure of 'less than 5'meets the need for transparency on the issue. It pointed out that the complainant's initial request had stated that his purpose in making the request was to inform the public who were the worst offenders or the better examples when it comes to bullying in the workplace. The council argue that there is however no value whatsoever in providing more specific numbers in response to the request because a disclosure of 'less than 5' from an authority with 20 000 employees clearly demonstrates that it must be amongst the better authorities in this regard. There is no value or purpose in the complainant requiring more specific figures from the council, and the request therefore lacks purpose or value,
5
Reference: FS50649572
I
lnlormatlon Commlssloner'5 Of ke tco.
25. In short therefore its argument is that there is no legitimate public interest in trying to achieve a level of accuracy which would not further the public's understanding of the issue and the complainant's insistence over the point therefore makes the request vexatious.
26. It did not specifically tie in its argument to its response to part 9 of the request, but the Commissioner notes that its response to this was to apply section 12 as a disclosure of specific information in respect of this would exceed the appropriate limit under section L2 of the Act.
The Commiss ioner analvsis
27. The Commissioner has considered the above arguments. As stated, she considers that, broadly speaking, the key question a public authority must ask itself is whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress.
28. The Commissioner notes that the council has already disclosed the details for questions 1-B and so this would create no additional burden on the council to respond and provide the specific numbers concerned at the point that it determined that the request should be considered vexatious. Responding to parts 1 - B would not cause a disproportionate or unjustified level of disruption. Having said this, the Commissioner has explained in the paragraphs below why she has accepted the council's argument that section L2 is applicable to this part of the request.
29. Even with accepting this point the Commissioner does not consider that, overall, the request can be considered to be vexatious. The complainant requested specific information which the council agreed the public has a legitimate interest in knowing - the levels of bullying and/or harassment complaints made within the authority. The council has sought to apply an exemption to that information to a degree and provided a band of information to parts of the request where it considered that the exemption in section 40(2) applied. The complainant asked the council to review that decision at which point the council sought to rely on section 14 for the reasons provided above. The council's argument is therefore that the complainant's persistence on obtaining the specific information he requested is vexatious, rather than an argument that the request itself is vexatious.
30. The Commissioner considers that the complainant has a right to request that an internal review is carried out. The council offers this process following the guidance in the section 45 Code of Practice. This provides guidance to authorities that reviews should be part of the procedures set in place to deal with FOI requests, (although this is not a statutory requirement set in to the Act itself). Essentially the council's reaction to
6
Reference: FS50649572 tco. a lnlormat¡on Comm¡ssloner s Off ¡ce
the request for review in this case was to consider the request vexatious because the complainant has not accepted its initial, partial response.
31. As regards question 9, the fact that a person has requested information which takes the amount of work required by the authority over the appropriate limit is not of itself a reason for that request to be considered vexatious- other factors need to be present, such as an intention to create work disproportionate to the value of the information requested or to create disruption or to harass individuals at the council or a general lack of purpose to the request. In this case the overall request was reasonable and the council agreed that a disclosure of the information was in the public interest. It simply disputes that the exact figures need to be disclosed in order for the complainant to understand the number of complaints it has had compared to other authorities.
32. The Commissioner's decision is therefore that the council was not correct to apply section 14(1) to the request. The complainant is entitled to ask the council to review its initial decision and would be informed by the Commissioner to do so before his complaint would be accepted for investigation by her.
Section 40(2)
33. Section 40(2) of the FOIA states that information is exempt from disclosure if it constitutes the personal data of a third party and its disclosure under the Act would breach any of the data protection principles or section 10 of the Data Protection Act 1998 ('the DPA').
34. The council relied on section 40(2) to provide the bands of 'less than 5' to part 3,4 and 9 of the request. It said that if it provided more specific figures then employees may be able to be identified by colleagues who would then learn that a complaint about harassment or bullying had been made.
35. In order to rely on the exemption provided by section 40(2), the requested information must therefore constitute personal data as defined by the DPA. Section 1 of the DPA defines personal data as follows:
""Personal data" means data which relate to a living individual who can be identified (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and
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any indication of the intentions of the data controller or any other person in respect of the individual."
36. Secondly, and only if the Commissioner is satisfied that the requested information is personal data, he must establish whether disclosure of that data would breach any of the data protection principles under the DPA. The Commissioner notes in this case that the council said that disclosure would breach the first data protection principle.
Is the withheld information personal data?
37. The two main elements of personal data are that the information must 'relate'to a living person and that the person must be identifiable. Information will relate to a person if it is about them, linked to them, has some biographical significance for them, is used to inform decisions affecting them or has them as its main focus.
38. From the definition above, it follows that information or a combination of information, that does not relate to and identify an individual, is not personal data.
The Public authority's arguments
39. The disputed information in this case is the further breakdown of the overall number of complaints which the Council confirmed were in the scope of the request (less than five), which the council applied to questions 3,4 and 9. The primary consideration in the circumstances of this case is whether any employees are identifiable from the anonymised data, in conjunction with information already known or available to the public, including work colleagues of the índividuals concerned.
40. The information relates to complaints made by employees relating to bullying and/or harassment at the council. The council argues that answering the relevant questions to a more specific number than'less than 5'would allow some individuals to be identified by other members of staff who work with the individuals. They may be aware that the individual was involved in some issue with the council but have no further details of what this was about. If they recognised that the figures related to the individual they would realise that a complaint about harassment/bullying had been made by, or about them.
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4I. It argues that disclosing specific numbers of less than 5 heightens the potential for colleagues to pinpoint who had made such claims, and therefore gain information about their colleague which they would not otherwise have known. For example it argued that:
"...a certain person has been to an appeals tribunal, and that there has only been one appeal in the last year. If he learns that only one appeal case concerned bullying, then he can deduce that the person he knows had alleged bullying. By this process fhe information would indirectly disclose a fact which he had not previously known."
42. The Commissioner notes however that the complainant has not asked for the specific years in which the numbers of complaints were made to be specified. He has merely asked for the information to be disclosed from 2009. The council has however highlighted it only holds information from 20L2.
The'motivated intruder' test
43. A test used by both the Commissioner and the First-tier tribunal in cases such as this is to assess whether a 'motivated intruder'would be able to recognise an individual if he or she was intent on doing so. The 'motivated intruder'is described as a person who will take all reasonable steps to identify the individual or individuals but begins without any prior knowledge. In essence, the test highlights the potential risks of reidentification of an individual from information which, on the face of it, appears truly anonymised.
44. The ICO's'Code of Practice on Anonymisation' notes that:
"The High Court in IR (on the application of the Department of Health) v Information Commissioner t2011 EWHC 1430 (Admf n)l stated that the risk of identification must be greater than remote and reasonably likely for information to be classed as personal data under the DPA".
45. In summary, the motivated intruder test is that if the risk of identification is "reasonably likely", the information should be regarded as personal data.
The Commissio er assessment
46. Even where the numbers of individuals involved may be low, the Commissioner does not consider that this in itself means that the information is personal data.
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47. The Commissioner is mindful of the timeframe of the request, i.e. the information requested covers a period of just over of 5 years. The council pointed out however that this is a band of time, and that cases may involve a timeline of less than 5 years. Nevertheless in the Commissioner's view the time period involved would lessen the likelihood of some individuals being identified. This is because an individual would need to have a detailed knowledge of all the employees working at the Council over the relevant period of time, together with details of the specific outcome of the complaints in order to be able to potentially identify specific individuals. Additionally, there will have been a turnover of staff during that period and those who made complaints may therefore no longer be employees.
48. The Commissioner code of practice on anonymisation states at page 25:
"The risk of re-identification posed by making anonymised data available to those with particular personal knowledge cannot be ruled out, particularly where someone might learn somethíng 'sensitive'about another individual - if only by having an existing suspicion confirmed. However, the privacy risk posed could, in reality, be low where one individual would already require access to so much information about the other individual for re-identification to take place. Therefore a relevant factor is whether the other individual will learn anything new.
49. On page 26 it goes on to state:
"Data protection law is concerned with information that identifies an individual, This implies a degree of certainty that information is about one person and not another. Identification involves more than making an educated guess that information is about someone; the guess could be wrong, The possibility of making an educated guess about an individual's identity may present a privacy risk but not a data protection one because no personal data has been disclosed to the guesser. Even where a guess based on anonymised data turns out to be correct, this does not mean that a disclosure of personal data has taken place. However, the consequences of releasing the anonymised data may be such that a cautious approach should be adopted, even where the disclosure would not amount to a disclosure of personal data. Therefore it may be necessary to consider whether the data should be withheld for some other reason, as discussed later in this code."
50. The council has reduced the specific numbers involved down to the band of 'less than 5'in order to reduce the possibility than individuals might be recognised from the disclosure of the data. It argues that the main risk is that colleagues might be able to recognise individuals if more specific numbers are disclosed. Correctly, it has excluded colleagues
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from the Human Resources department of the council from this consideration as they would be already be likely to be aware of the issue.
51. The Commissioner notes that the council has over 20 000 employees. This is relevant to whether an individual could be identified from such a large number. Larger numbers of employees affect the surety which any colleague might have. He or she could not be sure that any numbers disclosed refer to that individual to the same degree as if employee numbers were less than a few hundred or less. They would be unsure of how many other incidents might have occurred which they were not aware of.
52. Additionally, knowledge of the fact that a colleague has appealed a council decision does not mean that their case related to bullying and harassment. Appeals can be made on a number of different issues (such as a pay dispute, a dispute over leave or an equality issue). Disclosing that there had been, for instance, a single or several appeals relating to bullying and harassment would not put employees in a better position to relate this to a specific individual unless they also know, or could distinguish, that no other appeals had been made on other issues. It appears to the Commissioner that it would be highly unlikely that no other appeals on any other issues had occurred over the space of 5 years in a council of 20 000 employees.
53. Effectively therefore even if employees considered that the disclosure of the figures might relate to colleagues, without the full facts they would not be able to establish that that was the case. As noted above, the Commissioner considers that a disclosure which allows for no more than an educated guess is not a disclosure of personal data for the purposes of the Act.
54. The Commissioner is therefore satisfied that a disclosure of the figures withheld in response to questions 3 and 4 would not be a disclosure of personal data. The council was not therefore correct to apply Section 40(2) to this information.
Section 12
55. During the course of the Commissioner investigation the council sought to apply an argument that disclosing a more detailed response to question 9 would be likely to exceed the appropriate limit under section L2 of the Act. It said that although it had provided a figure of less than 5 to the complainant in actuality this was based on an estimate given by a member of the responsible team, rather than any specific searches for information being carried out. The estimate was based upon the individual's knowledge, and the officer had said that she could not
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remember any particular cases have the word 'loner' as part of the complaint. Effectively therefore the council believed it was correct to say 'less than 5' was an appropriate response to this part of the request as the numbers would be below this, and may even be zero.
56. The Commissioner asked the council to provide an estimate of the time it would take to search the relevant files to locate any relevant information bearing in mind that a total of 35 files would appear on the face of it to be a manageable amount to consider within the appropriate time limit.
57. The council argues that it considers that the nine questions are a single set, and nothing in the enquirer's words indicates that he sees them differently. It therefore argues the appropriate limit of 1B hours applies to all nine questions.
58. To answer the first eight questions of the request, the council said that it conducted a survey of all its available 'Resolving Issues at Work' cases which generated a list of 315 cases. It said that each had to be checked individually to see if they related to bullying and harassment, as cases are only loosely classified. Many took around 3 minutes per case, but a number of cases had to be read thoroughly because it wasn't clear from the electronic information whether they were bullying and harassment cases. These cases could have taken up to 15 minutes each as the HR advisor involved in each case had to be consulted. But even at only 3 minutes each for all of them, at least L5.75 hours had been spent before question 9 was reached.
59. The council argues that the word 'loner' is not one of its descriptors under which cases are filed, and therefore the only way to determine the actual figures it holds would be to read through each of the 35 files it has identified as being relevant to question 1 with a view to identifying whether this formed part of the complaint or the response. It argues that the cases are, on average 65 pages long and each one would take, on average, 45 minutes to read fully in order to determine whether the word'loner'was included, The Commissioner notes that this is longer than the original 15 minutes it suggested it took to go through files when considering its response to parts 1- B of the request. The council argued however that no more than 2.25 hours was available to answer Q9. It suggested that implies an average of 4 minutes per file, or less than 4 seconds per page in order to read through the files within the remaining time. The council argues that this is not feasible if the search is to be even minimally reliable.
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60. It argues that 35 times an average of 45 minutes each provides an estimated figure of 26.25 hours to complete. When added to the time taken to initially identify and respond to parts 1 - B of the request this provides an overall estimate of 42 hours. It said that it does not see how this figures could be reduced in any way below the appropriate limit and said that it sought to reply to the complainant in the only way it could to reduce the request whilst still providing a response to the requestor as required under section 16 of the Act. As stated above, it also believes that from its discussions with the relevant individual, it is correct in any event to state that if any information is held, the figure is likely to be less than 5,
61. The Commissioner has considered the council's response. She notes that there is a discrepancy in the council's response in that it has provided two different estimations of time to read through the relevant files (15 minutes in response to parts 1-8, and 45 to read the same files províded in response to part 9). However even with this point, if the council could read through each file within 15 minutes (the estimate for reading through the files it originally considered), this would still add over B hours to the work carried out on parts 1 - B of the request. This would also exceed the appropriate limit. For this reason she has accepted the councíl's application of section 12 to this part of the request.
62. The Commissioner therefore considers that the council was correct to apply section 12 to the response to question 9.
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Right of appeal
63. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:
First-tier Tribunal (Information Rights) GRC & GRP Tribunals, PO Box 9300, LEICESTER, LE1 BDJ
Tel: 0300 L234504 Fax: 0870 739 5836 Email : GRC@hmcts. gsi.qov. uk Website : www.j u stice. gov. u k/tri bu n a I s/genera l- req u latorychamber
64. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.
65. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on whic is decision notice is sent
Signed
Andrew White Group Manager Information Commissioner's Office Wycliffe House Water Lane Wilmslow Cheshire SKg sAF