A council has won an appeal over whether it was required – following an FOI request – to disclose the job titles of junior officers attending a meeting at a law firm to discuss a major outsourcing project.
The requester, Derek Dishman, submitted a freedom of information request on 19 December 2011 to the London Borough of Barnet asking the council to provide: “the job titles…of the 40 officers who spent some or all of the week ended 16 December 2011 at the officers of Trowers & Hamlins evaluating the four proposals for the New Support & Customer Services Organisation (NSCSO) proposals”.
Barnet refused Dishman's request on 27 January 2012. The local authority claimed that it was prejudicial to its commercial interests – under s. 43(2) FOIA – and that it was also exempt as personal data – under s. 40(2) FOIA.
Following an investigation, the Information Commissioner concluded that:
- The council wrongly applied the commercial interests exemption and partially misapplied the exemption for personal data;
- The council was required to disclose the job titles of the senior officials attending the law firm’s officers. Although these were personal data as they related to an individual postholder, it was not unfair to disclose them.
- The council was also required to disclose the job titles of the junior officials identified by the request where more than one person held the job title because: (a) where only one individual held the job title, and they were a junior official, the title was personal data because disclosure would create a real risk of that junior official being identified and it would be unfair to make the disclosure because it would breach the official’s reasonable expectations of privacy and cause them distress; and (b) titles held by more than one individual were not ‘personal data’, and so could not be exempt under s40(2) FOIA.
Barnet subsequently provided the job titles for senior officials. The appeal before the First-Tier Tribunal (Information Rights) focused on whether the council had to disclose those titles shared by more than one junior official as required by the Information Commissioner.
The tribunal unanimously upheld Barnet’s appeal in relation to s. 40 FOIA, but not when it came to s. 43(2).
On the issue of whether the requested information in relation to junior officers was personal data, the tribunal said: “We consider that in this case, officials are likely to become identifiable from their job title and other information that the requester is reasonably likely to have and obtain. This is supported by the requester’s involvement with blogs and apparent access to the council’s intranet, neither of which he has disputed.”
The tribunal said it followed that the requested information was personal data for the purpose of s. 40.
It added: “If the requester or any other motivated person were to identify the wrong official from the job titles given, we consider that it would still amount to the identification of a living individual (albeit not the one he seeks) and the information would again be personal data for the purpose of s. 40 FOIA.”
The tribunal said it noted that the requester argued that his blog had evolved such that he no longer intended to blog about job holder identities. Dishman also stated that if he were to make an error as to the jobholders’ identities he would correct his blog if informed, and that he did not plan to identify the names of junior job holders. The requester also stated that he did not know what he would do with the information until he had seen it.
“This does not alter our view,” the tribunal stated. “This is because our task is to determine whether officials would be identifiable from the requested material and the potential impact this may have on their legitimate interests.”
In relation to commercial interests, the tribunal backed the ruling of the Information Commissioner. “In particular, on the evidence provided by it, we do not think the council has demonstrated that the requested information would or would be likely to prejudice any commercial interests of the council or another person.”
The ten-year, £320m+ contract for the NSCSO is a key part of the council’s One Barnet programme. In August Barnet signed the contract with Capita for its establishment as well as a separate £154m joint venture for the councils’ Development and Regulatory Services.
The signings came just days after the Court of Appeal rejected the claim brought by local resident Maria Nash on the basis that it had been brought out of time.