Discovering the limits of FOI legislation
For the last year, Bath & North East Somerset (B&NES) Council have repeatedly refused to answer my Freedom of Information (FoI) requests about an alleged matter of wrongdoing by a senior local government officer involving taxpayers’ money. I am now in the process of appealing against their stonewalling. My experience may well be of interest to other TPA supporters encountering similar difficulties and reveals the limits of FoI requests.
One of the purposes of the Freedom of Information Act (FOIA) 2000 was to create greater transparency in local government and enable citizens to request information in pursuit of this aim. This has been balanced by a right to private data protection for those working within local government. But should this right be extended to those who have been involved in alleged wrongdoing in the course of their work for local government? That is of legitimate interest to the public and should, in my opinion, override anyone’s right to personal data protection.
I am appealing to the First-tier Tribunal against the Information Commissioner’s decision (FS50539446) that the data protection rights of a senior council officer outweigh the public interest in knowing what were the alleged matters of wrongdoing under investigation by the local council. I originally appealed to the Information Commissioner’s Office against the blank refusal of Bath & North East Somerset Council (B&NES) to answer any of my Freedom of Information request questions regarding this matter. The Information Commissioner’s Office has simply backed up B&NES’ refusal to give me any information, quoting Section 40 (2) of the FOIA. This may be correct according to the letter of the law, but in my opinion is most certainly against the spirit of the Freedom of Information Act. I would also question whether the matter under investigation does in fact fall under Section 40. That is why I am appealing against this decision.
The incident under investigation involves a former divisional director of tourism, leisure and culture for Bath & North East Somerset Council (B&NES), who was suspended from his office between July 2012 and his retirement in September 2012. A B&NES press release, printed in part in the Bath Chronicle, declared that ‘certain matters were being investigated’ but they would not say what the matters were and at the end of the process the individual concerned retired.
That both the Council and the Information Commissioner’s Office should quote Section 40 as the reason for not giving out any information on this matter seems odd and illogical, as I don’t understand how a local government investigation of the alleged wrongdoing of a senior council worker can be the exclusive private data of that individual. The clause is badly expressed and confusing and can be used as a catch-all to deny the public access to almost any information held by local government.
The Commissioner claims that the former director expects his terms of employment to remain confidential, but admits that he is a senior council employee and details of pay of such employees are routinely published. At no point does the Commissioner consider the ongoing investigation – and yet I think most people would consider this of legitimate public interest. In my opinion, this is not a good enough reason to refuse a Freedom of Information enquiry into these matters.
The press release given to the local media, referred to above, was in my opinion completely inadequate in the information it put out into the public domain about the reasons for the individual’s suspension and prompt departure. B&NES clearly considers the matter to have been dealt with internally and of no further public interest. This is wrong and not appropriate for a public, taxpayer funded body. It certainly does not ‘give confidence to the community at large.’
Regarding the detail of the Director’s severance payment, if it is enclosed within B&NES overall figures for severance payments, why cannot the precise figure be communicated to the public? As the Commissioner himself quotes from his notes of guidance, such transparency should be especially forthcoming when ‘there is any evidence of mismanagement by senior staff in a public authority’.
Overall, I find the Information Commissioner’s decision surprisingly supportive of B&NES’ efforts to move beyond the investigation. Taxpayers deserve to know the results of the internal investigation. If they’re allowed to get away with this, what next will they bury from the public gaze? I look forward to hearing the comments of the First-tier Tribunal on this most important matter.
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