In Trago Mills (South Devon) Ltd v Information Commissioner and anor the Information Rights Tribunal has held that a council was entitled to refuse part of a freedom of information request concerning a severance arrangement with a senior employee. The information was personal data of that individual and disclosure would have been contrary to data protection principles. It was therefore exempt information under S.40(2) of the Freedom of Information Act 2000.
X, Teignbridge District Council’s former ‘Service Lead for Planning’, recommended that several of TM(SD) Ltd’s applications for planning permission be rejected. TM(SD) Ltd’s chairman, R, complained to the Council about X’s prejudice or bias. However, a solicitor’s independent investigation commissioned by the Council concluded that there was insufficient evidence to substantiate the allegations. On learning that X was to take voluntary early retirement, R considered that the Council had, in effect, dismissed X, and used his early retirement and the confidentiality of his severance agreement to suppress the truth about X’s ‘misconduct’.
TM(SD) Ltd subsequently requested details of X’s contract and severance package under S.1 of the Freedom of Information Act (FOIA), which requires certain public authorities to disclose information unless it falls within a specified exemption. The Council provided a redacted copy of X’s employment contract but refused to disclose other information about X’s employment on the ground that it was exempt third party personal data under S.40(2) FOIA. After several more attempts to obtain the information from the Council, TM(SD) Ltd filed a complaint with the Information Commissioner. The Commissioner concluded that, although X held a senior role in the public sector, such that his reasonable expectations of privacy might be less than would otherwise be the case, they nevertheless outweighed the arguments for disclosure. The S.40(2) exemption therefore applied and the Council had been entitled to reject the information request. TM(SD) Ltd appealed to the Information Rights Tribunal (part of the General Regulatory Chamber of the First-tier Tribunal), which can consider issues of fact as well as law.
The tribunal had to consider S.40(2), which provides that personal data of a third party is exempt from disclosure if this would contravene any of the data protection principles set out in Part 1 of Schedule 1 to the Data Protection Act 1998. In the instant case these required personal data to be processed only if necessary for the legitimate interests of the data controller or third party or party to whom the data is disclosed, unless processing would prejudice the rights and freedoms or legitimate interests of the data subject. The tribunal decided to weigh up X’s ‘rights and freedoms’ on the basis of the expectations of privacy of a reasonably balanced and resilient individual holding X’s position with the Council. The tribunal did not consider it determinative that there was a confidentiality agreement in place, but noted that even without an express confidentiality provision, an individual would have a reasonable expectation that the terms on which his employment came to an end would be treated as confidential.
Dismissing the appeal, the tribunal concluded that, on the facts, the Council’s duty to be transparent and accountable about the expenditure of public money did not outweigh the requirement to respect X’s reasonable expectation of privacy. Material in a closed bundle submitted by the Council made very clear that X’s departure and the terms of his severance package were not influenced in any way by conduct or performance issues. It therefore carried no weight to support TM(SD) Ltd’s argument that there was a strong and legitimate interest in disclosing the requested information. Accordingly, disclosure would have breached the data protection principles. In the course of its judgment the tribunal noted that even if TM(SD) Ltd had established that X had been guilty of ‘wrongdoing in public office’ this would only support a legitimate public interest if the wrongdoing had been so serious that the Council could be criticised for not having taken it into account when considering X’s application for early retirement.
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