E-mail request

Mr Davey Cumbers

Our ref: ATISN 10317
Date: 26 April 2016

Dear Mr Cumbers

Request for Information – ATISN reference 10317 – Internal Review

On 20 March 2016, you submitted a request in which you asked the following:

“Further to the disclosure under (our reference) ATISN 9761, for the Employment Tribunal 1 (ET1) lodged in 2015, can you please provide details of the nature of this claim i.e. discrimination, victimisation etc. and provide details of the outcome i.e. hearing successful, withdrawn or settled out of court”.

Following our recent disclosure to you under (our reference) ATISN 10317, in your response email dated 3 April 2016, you stated you did not ask for personal data – just the nature and outcome of the ET1 lodged. Whilst confirming in our disclosure the ET1 was still ongoing (meaning that the Welsh Government does not hold any information regarding an ‘outcome’), I have conducted a review on the basis of the decision to not release the nature of the case under Section 40 (2) of the Freedom of Information Act (2000) (FOI Act).

As outlined in our original disclosure, Section 40 FOI Act sets out an exemption from the right to know if the information requested is personal information protected by the Data Protection Act 1998 (DPA). Whilst I acknowledge that in your email of April 3 you confirm that you ‘did not ask for personal data’, by definition ‘personal data’ is not solely limited to the name of an individual.

Personal data is defined in Section 1(1) of the DPA as follows (my emphasis):

“personal data” means data which relates 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.

Following this, and as releases under the Freedom of Information Act are made ‘to the world’, I believe that should the nature of the ET1 be released into the public domain, it may be possible for a third party to be able to ascertain the identity of the individual based on other information or knowledge they may possess. Because of that, my review has concluded that this information is personal information as defined by the DPA.

Under Section 40(2) of the FOI Act, personal data is exempt from release if disclosure would breach one of the data protection principles. Following my review, I have concur that the most relevant principle in this instance as being the first.

The first data protection principle states:

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.

Guidance from the Information Commissioner’s Office (Personal information (section 40 and regulation 13) v 1.3) states (at p11):

• The starting point is to consider whether it would be fair to the data subject to disclose their personal data. The key considerations in assessing this are set out in the section on Fairness below.

• If disclosure would not be fair, then the information is exempt from disclosure.

This approach was endorsed by the Court of Appeal in the case of Deborah Clark v the Information Commissioner and East Hertfordshire District Council where it was held:

“The first data protection principle entails a consideration of whether it would be fair to disclose the personal data in all the circumstances. The Commissioner determined that it would not be fair to disclose the requested information and thus the first data protection principle would be breached. There was no need in the present case therefore to consider whether any other Schedule 2 condition or conditions could be met because even if such conditions could be established, it would still not be possible to disclose the personal data without breaching the DPA” (paragraph 63).

For your request, I do not believe the individual concerned would have any expectation that information about the nature of their case would be made public until the appropriate stage of the established Tribunal procedure had been reached – whereupon, should there not be a decision to withdraw, the information would be made public.

I believe release of this information at this time would be unfair to the individual and so breach the first data protection principle. To that end, I have concluded it is right the nature of the ET1 be withheld under section 40(2) of the Freedom of Information Act and your complaint is not upheld.

If you remain dissatisfied with this response you also have the right to complain to the Information Commissioner at:

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Tel: 01625 545 745

Fax: 01625 524 510

Email:

Also, if you think that there has been maladministration in dealing with your request, you have the option to make a complaint to the Public Services Ombudsman for Wales who can be contacted at:

Public Services Ombudsman for Wales

1 Ffordd yr Hen Gae

Pencoed

Bridgend

CF35 5LJ

Telephone: 0845 6010987 (local rate)

Email:

Yours sincerely

Sioned Evans

Deputy Director - Business, Property & Professional Services