The Information Commissioner's Office (ICO) has ordered the Financial Services Authority (FSA) to disclose details of its entire staff at manager level and above, following a request made under the Freedom of Information Act 2000 (FOIA).
The request was made in January 2012, in the knowledge that the FSA had previously released such a list in March 2010. The FSA responded by providing a structure chart containing the names of heads of departments and above. However, it refused to disclose those at manager level on the basis that disclosure would be prejudicial to the conduct of public affairs, under section 36(2)(c) of the FOIA. Also, in relation to those members of staff who had left the FSA or moved grades, the data constituted personal information and was therefore exempt from disclosure under the FOIA in line with section 40(2).
In reviewing the previous disclosure, the ICO noted that a public authority may refuse to disclose information it has previously released if the information is not in the public domain and the circumstances have changed since the previous disclosure. The ICO found that the list which had previously been released was not publicly available. The ICO's decision notes that "a previous disclosure will not automatically mean that the information has entered the public domain". As a result, the ICO found that it was legitimate for the FSA to attempt to rely on the exemption under section 36.
Prejudice to effective conduct of public affairs (FOIA s36(2)(c))
The FSA argued that, following the announcement in June 2010 that it was to be abolished and transformed into separate organisations, it was in a period of transition and that therefore public disclosure of its staff list could lead to employees being targeted by external recruiters. It contended that the potential departure of senior staff could lead to a "talent vacuum" which would make it more difficult to carry out its functions. Although the ICO accepted that such prejudice was likely to occur, it went on to consider the balance of severity, extent and frequency of that prejudice against the public interest in disclosure. In doing so the ICO was not satisfied that releasing the names of the managers would have a serious impact on the FSA. The ICO noted that the FSA was a large organisation with approximately 4000 staff and that a significant number of staff would need to leave in order for the effect on the FSA to be serious. The disclosure of the details of department heads had not had a significant impact on staffing levels.
The ICO did not consider that the arguments in favour of disclosure were particularly strong, but noted that disclosure would serve the public interest by promoting openness and transparency within the FSA. Accordingly, the presumption in favour of disclosure outweighed the "relatively minor prejudice" which release of the information would cause.
Personal information (FOIA s40(2))
Under s40 information is exempt from disclosure if it constitutes personal data and disclosure would contravene one of the data protection principles. The FSA claimed that disclosure of details of staff that had left or moved grades since the previous list was released would breach the requirement that data be processed fairly and lawfully.
In considering this argument, the ICO took into account the expectations of the individuals, the possible consequences of disclosure and the nature and content of the information. The ICO found that it was significant that following the disclosure of March 2010 the individuals concerned would have a reasonable expectation that the information would be disclosed, and was not convinced that any disclosure would cause particular distress. As a result the ICO held that disclosure of the limited details of the individuals' professional roles would not be unfair.
The ICO accepted that the transparency of FSA management roles was a legitimate interest which would be served in publishing the staff list. However, this did not extend to the release of details relating to those staff members who had subsequently left the FSA. Information relating to these individuals only was therefore exempt under section 40(2) and was to be redacted from the published information.
The FSA has been given 35 days to disclose to the complainant a list of all its other managers.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2012. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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