Two contradictory decisions from the ICO as to whether disclosure of the names of councillors in the Local Government Pension Scheme is lawful might leave FOI officers – and requesters – scratching their heads
Remember those “Spot the Difference” competitions?
In 2010 the Information Commissioner’s Office (ICO) issued a Decision Notice concerning a request made to Buckinghamshire County Council under the Freedom of Information Act 2000 (FOIA). The request was for the names of councillors who had chosen to join the Local Government Pension Scheme (LGPS). The ICO agreed with BCC that
the withheld information is personal data relating to these councillors
But disagreed that section 40(2) and (3) of FOIA exempted the information from disclosure, rejecting an argument that the councillors would not have had a reasonable expectation of disclosure of the information:
the Commissioner has not found any evidence to support a view that disclosing the requested information would be likely to cause unnecessary or unjustified damage or distress to the individuals concerned
The Commissioner is satisfied the requested information relates primarily to the councillors’ public lives and does not intrude significantly on their private and family lives.
Consequently BCC was
to provide the complainant with the list of names of the ten councillors who were members of the LGPS
Compare and contrast with a Decision Notice issued recently relating to a FOIA request to Central Bedfordshire Council (CBC). The request was for names of councillors who had chosen to join the Local Government Pension Scheme (LGPS). The ICO agreed that
information regarding the details of an individual’s pension is personal data
And agreed with CBC that section 40(2) and (3) of FOIA exempted the information from disclosure, saying
individuals will have a reasonable expectation that information about their pension, and their decision whether or not to take one, will not be routinely disclosed
and that the councillors’
expectations of privacy with regard to their pensions are still objectively reasonable as it relates far more to their private lives than their professional lives
Consequently CBC was correct
to rely on section 40(2) to withhold…the requested information
A few questions arise: are BCC councillors entitled to bring a complaint against their council for unfair processing? if so, would BCC have a defence that they complied with a legal notice from the statutory regulator? Is local government “lagging behind best practice in other parts of the public sector” (para 20 of FS50233989) or not? Which Decision Notice should other councils follow when they get similar requests? And, finally, did the ICO even look at the earlier decision when it issued the second?
DISCLAIMER: I have a professional connection to one of the public authorities involved.