055/2007 Professor Ronald MacDonald and Highland Council
Request for information relating to the qualifications of a Highland Council employee.
Applicant: Professor Ronald MacDonald
Authority: Highland Council
Case No: 200600458
Decision Date: 02 April 2007
Kevin Dunion
Scottish Information Commissioner
Details of the professional qualifications held by a member of staff employed by Highland Council ? whether information was personal data and whether disclosure would breach the data protection principles
Relevant Statutory Provisions and Other Sources
Freedom of Information (Scotland) Act 2002 section 1(1) (General entitlement); 38(1)(b) and 38(2)(a)(i) (Personal information).
Data Protection Act 1998 section 1 (Basic interpretative provisions), Schedule 1, Part 1, paragraph 1 (The first data protection principle), Schedule 2 (Conditions relevant for purposes of the first principle: processing of personal data).
The full text of each of these provisions is reproduced in the Appendix to this decision. The Appendix forms part of this decision.
Facts
Professor MacDonald wrote to Highland Council (the Council) to ask it for details of the qualifications of one of its employees (the employee). The Council refused to release this information in terms of section 38(1)(b), read in conjunction with section 38(2)(a)(i), of the Freedom of Information (Scotland) Act 2002 (FOISA).
Following an investigation, the Commissioner found that the Council failed to deal with Professor MacDonald's request for information in line with Part 1 of FOISA, in that it had incorrectly applied the exemption under section 38(1)(b).
Background
1. Professor MacDonald has been in dispute with the Council about the safety of the land behind his property on Skye, since 2003.
2. Specifically, Professor MacDonald is concerned that the land on the perimeter of his property is now unstable, due to the existence of large amounts of tipped earth which was left behind by developers.
3. In February 2005, the developers were required to remove all tipped earth from the site but Professor MacDonald contends that they did not remove all the tipped earth, and that a substantial amount remains which he believes threatens the safety of his property and his family.
4. Professor MacDonald has requested that the Council remove the remainder of the tipped earth as it poses a risk to public safety. However, the Council has refused to do this as it contends that the site is safe and that all the tipped earth has been removed. In reaching this position, the Council depended on the opinions and recommendations of a member of staff who is currently employed by the Council as principal geotechnical technician.
5. On 21 September 2005, Professor MacDonald wrote to the Council to ask it for information about this employee. Specifically, Professor MacDonald asked:
a) What are the employee's qualifications as a geotechnical / civil engineer? (a complete list of his degrees and professional affiliations, if any)
b) Does the employee have a direct line manager who is able to address questions of substance regarding his professional conduct?
c) Who, in particular, can I make a formal complaint about regarding the employee's failure to properly address various safety issues relating to my property?
6. On 18 October 2005, the Council wrote to Professor MacDonald and provided him with information that satisfied request b) and c) but informed him that it was withholding information pertaining to request a) in terms of section 38(1)(b), read in conjunction with section 38(2)(a)(i), of FOISA.
7. On 7 November 2005, Professor MacDonald wrote to the Council to ask it to review its decision to withhold details of the qualifications of its employee under section 38(1)(b) of FOISA, arguing that the information should be released because the Council was relying on the employee's expertise in relation to issues of public safety.
8. On 7 December 2005, the Council wrote to Professor MacDonald detailing the results of its review. It informed him that it upheld its original decision to withhold the information under section 38(1)(b) of FOISA, but provided Professor MacDonald with a copy of the original job advertisement used to recruit the employee.
9. On 27 February 2006, Professor MacDonald wrote to my Office, stating that he was dissatisfied with the outcome of the Council's review and applying to me for a decision in relation to the Council's decision to withhold the details of the employee's qualifications.
10. The case was allocated to an investigating officer and validated by establishing that Professor MacDonald's had made a request for information to a Scottish public authority and had applied to me for a decision only after asking the authority to review its response to his request.
The Investigation
11. On 9 March 2006, the investigating officer wrote a letter to Professor MacDonald advising him that a full investigation into his case would now take place.
12. On 9 March 2006, a letter was also sent to the Council giving notice that an application had been received and that an investigation into the matter had begun, and inviting comments from the Council as required under section 49(3)(a) of FOISA. The Council were asked to supply my Office with, amongst other items, details of any qualifications gained or professional affiliations made while the employee was in the employment of the Council, as well as details of the employee's role within the Council.
13. The Council responded in full on 22 March 2006. In its response it provided my Office with information about the employee's role within the council, details of the employee's qualifications and professional affiliations, and commented on the matters raised by Professor MacDonald and on the application as a whole.
Submissions from Professor MacDonald
14. In his application to my Office, Professor MacDonald contended that as the employee had been described to him by the Council's Director of Planning as a "geotechnical expert" the employee's professional qualifications in this field should be available for public scrutiny.
15. He argued that this application differed from a previous decision issued by the Commissioner - 013/2005 (Mr Wright and Perth & Kinross Council) ? which found that the qualifications of certain of a council's employees could legitimately be withheld under section 38(1)(b) of FOISA ? as the current case related to matters of public safety. He further argued that as the Council was making decisions which affected public safety, based solely on the employee's alleged expertise in geotechnical matters, the qualifications of this employee should be disclosed.
Submissions from the Council
16. In its response, the Council referred to the same previous decision of the Scottish Information Commissioner ? 013/2005. It argued that this earlier decision by the Commissioner gave a good basis for reasoning that the qualifications and professional affiliations of the employee represented personal data and that its disclosure would breach the Data Protection Act 1998.
17. The Council further submitted that as the employee in question had three tiers of management above him, he could not be considered sufficiently senior to have no expectation of privacy in relation to this matter.
18. The Council argued that it was the responsibility of the employee's line managers to ensure that the employee's opinions were well-founded and when, on occasion, the employee acted as an internal consultant to other Council Services (e.g. Planning and Development) it was the Service making the recommendations to Committee (i.e. the Service which was "commissioning" the employee's services) which had responsibility and not the employee.
19. The Council stated that it had asked the employee for permission to disclose his qualifications, but the employee had refused and had been upset that the issue had been raised. The Council informed me that it had been in long term correspondence with Professor MacDonald, who has made allegations against several members of Council staff, including the employee. It advised me that a Council Solicitor had written to Professor MacDonald about the content of his correspondence. The Council considered this fact when considering whether it was "fair" to disclose the information without the employee's permission, and concluded that in this case, given its duty to support its staff, it was not.
20. The Council further stated that under the Council's policy on indemnity for its employees, Professor MacDonald could not seek redress from this individual employee but would, instead, have to seek redress from the Council itself.
21. Finally, the Council advised that the employee's professional memberships were paid for privately by the employee and not by the Council.
The Commissioner's Analysis and Findings
22. In coming to a decision on this matter, I have considered all of the information and the submissions that have been presented to me by both Professor MacDonald and the Council and I am satisfied that no matter of relevance has been overlooked.
Application of the 38(1)(b) exemption
23. Section 38(1)(b) exempts third party personal data if the release of the information would breach any of the data protection principles set out in Schedule 1 of the Data Protection Act 1998 (DPA). In its original response to Professor MacDonald, the Council withheld the information relating to the employee's qualifications in terms of section 38(1)(b) read in conjunction with section 38(2)(a)(i) of FOISA.
24. The Council argued that the section 38(1)(b) exemption applied because the requested information was biographical in nature and was, therefore, personal data as defined in section 1 of the DPA. The Council went on to assert that details of the employee's qualifications and professional affiliations were provided to the Council to enable a decision regarding recruitment to be made and at no time was the employee informed that the information would be made public. The Council therefore argued that release would breach the first data protection principle, which requires personal data to be processed fairly and lawfully.
25. I must now consider whether the information requested by Professor MacDonald was correctly withheld.
26. In considering this exemption, I am required to consider two separate matters: firstly, whether the information under consideration is personal data and, if so, whether the release of the information to Professor MacDonald would indeed breach any data protection principles.
27. It must be borne in mind that this particular exemption is an absolute exemption. This means that it is not subject to the public interest test contained in section 2(1)(b) of FOISA.
Is the information under consideration personal data?
28. "Personal data" is defined in section 1(1) of the DPA as "data which relate to a living individual who can be identified from those data, or 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 any indication of the intentions of the data controller or any other person in respect of the individual."
29. In decision 013/2005 I concluded that details of an individual's professional qualifications may fall within the definition of personal data. Such information will normally be biographical in relation to the individual in question, in that it will describe the qualifications obtained by an individual prior to their appointment in a particular role (some or all of which may have contributed to that appointment).
30. Having considered the nature of the requested information in this case, I am satisfied that the information in question constitutes the personal data of the employee, in that it is biographical information relating to that employee. Now I must consider whether the release of the information to Professor MacDonald would breach any data protection principles.
Would the release of the information breach the first data protection principle?
31. The Council has submitted that disclosure of the qualifications and professional affiliations of the employee would breach the first data protection principle, which states that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of the conditions in Schedule 2 of the DPA is met, and, in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
32. I have considered the definition of "sensitive personal data" in section 2 of the DPA and do not consider that any of the information sought by Professor MacDonald falls into this category.
33. With regard to the conditions in Schedule 2 of the DPA, it is my view that condition 6 is the only such condition which might be considered to apply. Condition 6 covers processing (for example, by disclosure) which is necessary for the purposes of legitimate interests pursued by the third party to whom information is disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
34. I must apply a number of tests to establish whether condition 6 supports disclosure of personal data in this case. The first test is whether it can be established that the third party / parties to whom the data would be disclosed has/have a legitimate interest in the processing of the personal data (in this case by disclosure to a member of the public) to which the request relates. The second is whether the processing is necessary for the purposes of those legitimate interests. The third is whether that processing can be seen to be unwarranted in this particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject. Both competing interests must then be balanced.
35. In considering the first test, I accept that Professor MacDonald, whose property is adjacent to the developed land, and who has concerns about the stability of the site, has a legitimate interest in knowing the qualifications of the employee on whom the Council relied upon to make decisions about the safety of the land. In addition, I also consider that a wider legitimate interest is shared by the general public in being entitled to know that those public authority employees who have a significant role in making decisions on issues relating to public safety are appropriately qualified to do so. I find, therefore, that the first test can be fulfilled.
36. In considering the second test, with regard to whether disclosure is necessary for the purposes of the legitimate interests identified in paragraph 35 above, I have considered whether these interests might reasonably be met equally effectively by any alternative means. In all the circumstances, I have concluded that the legitimate interests in question cannot be met without disclosure of the employee's qualifications and therefore that disclosure of this data is necessary for the purposes of the legitimate interests.
37. I must now consider the rights, freedoms and legitimate interests of the data subject (i.e. the employee) in relation to the information withheld.
38. Employees will normally have a reasonable expectation that information which is supplied as part of an employment application form will not be disclosed to anyone outside the recruitment process. In this case, the employee has also made it clear that they oppose the disclosure of their qualifications and professional affiliations to Professor MacDonald. The employee, therefore, clearly holds a legitimate interest in ensuring that the personal data in question is not processed in this manner.
39. However, I consider that, in this case, the legitimate interests of the data subject do not outweigh the countervailing legitimate interests of the applicant. As I have set out above, it is my view that the specific role and function performed by the employee in this case ensures that a substantial legitimate interest exists in terms of ensuring that the public are confident that those providing professional advice to inform decisions on issues of public safety are appropriately qualified to do so. I consider that this wider legitimate interest held by the public outweighs the equivalent interests of the employee in this case.
40. In terms of the consideration of the first principle, the final issue to be addressed is that of whether the processing of the information through release under FOISA would otherwise be fair and lawful.
41. With regard to the lawfulness of the processing, it should be noted that the Council have advanced no argument which would suggest that processing would be unlawful, beyond those arguments made in relation to the application of section 38(1)(b).
42. In terms of the fairness of the processing, and as noted above, the Council has argued that the release of the information in question would be unfair to the employee. In making this assertion, the Council argues that the employee in question would have no expectation that this information would be released, while also pointing out that the employee has specifically voiced his opposition to release. Given this opposition, it is therefore reasonable to presume that the disclosure of the information would cause the employee some concern.
43. According to guidance from the Information Commissioner ("Freedom of Information Awareness Guidance 1", which can be viewed at http://www.ico.gov.uk/documentUploads/AG%201%20personal%20info.pdf), the assessment of fairness includes looking at whether the third party would expect that his/her information might be disclosed to others and/or whether the third party would expect that his/her information would be kept private.
44. In my view, information that is included on an application form submitted to a specific organisation in response to a job advertisement, such as qualifications obtained, is normally supplied in the expectation that it will be seen by only those involved in the recruitment process. Applicants would not expect this information to appear subsequently in the public domain as a matter of course.
45. However, it seems to me that the "cut-off point" between public and private information is highly dependent upon the relevance of the qualification to the individual's position within a public authority. It will normally be the case that the higher the position and the greater the authority of an individual, the greater is the argument for openness, transparency and accountability. In this case, the specialist nature of the employee's role in the Council must also be considered. The Council has made a decision on a public safety matter, based on the opinions and recommendations of the employee. Therefore, while the level of the employee's post may not be of sufficient seniority to ensure that disclosure of such personal data would normally be expected, it is my view that the specific nature and responsibilities of the particular post in question will give rise to expectations of transparency and accountability.
46. In relation to the effect of disclosure on the data subject, guidance from the Information Commissioner ("Freedom of Information Awareness Guidance 1" ? see paragraph 43 above) states that:
"While it is right to take into account any damage or distress that may be caused to a third party by the disclosure of personal information, the focus should be on damage or distress to an individual acting in a personal or private capacity."
47. I note that the Council asked the employee for permission to disclose his professional affiliations and qualifications. The employee's response to this request was negative and the Council reported that the employee was clearly distressed that the issue had been raised. In addition, the Council drew my attention to the fact that it had instructed a Solicitor to contact Professor MacDonald about the content of his correspondence with the Council, in which he made allegations against various members of Council staff, including the employee.
48. However, I am not satisfied that any distress arising from the release of the information in these circumstances would affect an individual acting in a personal or private capacity, in that this information clearly relates to the employee in his professional capacity and his ability to perform the duties of his employment.
49. In addition, I am satisfied generally that the processing of the information in question (i.e. by disclosure) should not be considered to be unfair, for similar reasons to those outlined in the previous paragraphs. In reaching this view I consider that that the specific role and responsibilities which are undertaken by the individual employee in this case are such that it would seem to lead to a reasonable expectation on the part of that individual that the qualifications required to fulfil that role may be released into the public domain.
50. It is therefore my view, having considered fully the information in question, that the exemption in section 38(1)(b) has been wrongly applied by the Council and that the qualifications and professional affiliations of the employee should be disclosed.
Decision
I find that Highland Council failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) by misapplying section 38(1)(b) of the Freedom of Information (Scotland) Act 2002 to the information withheld. In doing so, it failed to deal with Professor MacDonald's request for information in accordance with section 1(1) of FOISA.
I therefore require Highland Council to release details of the employee's qualifications and professional affiliations to Professor MacDonald within 45 days of receipt of this decision notice.
Appeal
Should either Professor MacDonald or Highland Council wish to appeal against this decision, there is an appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days of receipt of this notice.
Kevin Dunion
Scottish Information Commissioner
02 April 2007
Appendix
Relevant Statutory Provisions
Freedom of Information (Scotland) Act 2002
1. General Entitlement
(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority
38. Personal Information
(1) Information is exempt information if it constitutes ?
(b) personal data and either the condition mentioned in subsection (2) (the 'first condition') or that mentioned in subsection (3) (the 'second condition') is satisfied.
(2) The first condition is ?
(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of "data" in section 1(1) of the Data Protection Act 1998 (c.29), that the disclosure of the information to a member of the public otherwise than under this Act would contravene-
(i) any of the data protection principles; or
(ii) section 10 of that Act (right to prevent processing likely to cause damage or distress); and
(b) in any other case, that such disclosure would contravene any of the data protection principles if the exemptions in section 33A(1) of that Act (which relates to manual data held) were disregarded.
Data Protection Act 1998:
1 Basic interpretative provisions
(1) In this Act, unless the context otherwise requires ?
?
"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 any indication of the intentions of the data controller or any other person in respect of the individual
?
Schedule 1 The Data Protection Principles
Part 1 The principles
1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
?
Schedule 2 Conditions relevant for the purposes of the first principle: processing of any personal data
...
6(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
