"The council can neither confirm nor deny..."

EXCLUSIVE by DOUGLAS SHEPHERD

Allegations of bullying and harassment at Scottish Borders Council's troubled adult care company are at the centre of an intriguing 'judgement' by Scotland's information commissioner who has ruled in the local authority's favour.

It means SBC was correct when it chose to neither confirm nor deny the existence of correspondence relating to four named individuals who were suspended from their posts at SB Cares last year.

SB Cares was the arms length business which had to be taken back into full council control at the end of 2019 after it encountered multiple difficulties and failed to live up to the expectations outlined when councillors sanctioned its foundation.

The Scottish Information Commissioner's (SIC) decision notice published this week summarises a Freedom of Information [FOI] request and the council's response as follows: "The Council was asked for correspondence regarding four named individuals. The Council refused to confirm or deny whether it held the information. The Commissioner investigated and found that Council was entitled to refuse to confirm or deny whether it held the information."

In June 2019 the FOI applicant made a request for information to SBC. He asked for copies of all Council and SB Cares correspondence, both email and letters, regarding: (i) the employment status and availability of four named SB Cares staff, over the last six months and (ii) the behaviour of the four named SB Cares staff, over the last six months.

In its response the council notified the requester that it was unable to confirm or deny whether it held any information falling within the scope of his request. The Council cited section 18(1) of FOISA and said that, if it held the information, the exemption in section 38(1)(b) of FOISA (third party personal data) would apply.

Margaret Keyse, the SIC's Head of Enforcement, in her decision notice, states: "The applicant applied to the Commissioner for a decision in terms of section 47(1) of FOISA. The applicant stated he was dissatisfied with the outcome of the Council's review because the information had already been reported in the press and the public interest outweighed concerns of confidentiality."

She explains that Section 18(1) of FOISA allows public authorities to refuse to confirm or deny whether they hold information in the following limited circumstances:  a request has been made to the authority for information which may or may not be held by it; and if the information existed and was held by the authority (and it need not be), it could give a refusal notice on the basis the information was exempt information.

Ms Keyse's report adds: "In his application, the applicant submitted that the names of the four individuals he named in his request had "…already been named in the local press" and argued that the public interest in allegations of bullying in a care setting outweigh the confidentially that the Council wishes to protect.

"The Applicant subsequently provided the Commissioner with a copy of a news article published two days after he made his request for information which names one of the four individuals, and which also states that four staff have been suspended while an investigation into allegations is carried out.

"The Commissioner acknowledges that the name of one of the four individuals was publicly linked with workplace allegations two days after the Applicant made his information request. However, he notes that the Council, at that time, had not issued any public statement regarding the identity of the four individuals, and that essentially all the article demonstrates is speculation in the media. Furthermore, as the newspaper article was published two days after the information request was made, it was not in the public domain at the time of the request."

The Council submitted that, given the wording of the applicant's request, any documents falling within the scope of that request consisted of material which would, if it existed and was held, be the personal data of the individuals involved.

"The applicant named the four individuals in his request and sought all Council and SB Cares correspondence relating to their behaviour or employment status and availability in the preceding six months.

"Each part of the request is framed by reference to a named living individual. Given that, and the subject matter of the request (their behaviour or employment status, etc.), if it were held and if it existed, any information captured by this request would clearly relate to that named individual. The Commissioner therefore accepts that, if it existed and were held, the information would be personal data."

Ms Keyse continues: "The Council has acknowledged that the Applicant does have a legitimate interest in disclosure of the information (if it existed and was held), as it would relate to allegations of bullying in a care setting which is a matter of public concern.

"In the circumstances, the Commissioner is satisfied that these are matters of legitimate interest, both to the applicant and to the wider public and is satisfied that the applicant does have a legitimate interest in obtaining the personal data. The Commissioner has considered the scope of the applicant's request and he accepts that disclosure of the personal data, if in existence and held, would be necessary to achieve the applicant's legitimate interest."

The Commissioner has concluded that the disclosure of the information (if existing and held) would be necessary to achieve the applicant's legitimate interests. However, this must be balanced against the fundamental rights and freedoms of the data subjects (the individuals named by the applicant as being subject to allegations). 

"Only if the legitimate interests of the applicant outweighed those of the data subjects could personal data be disclosed without breaching the first data protection principle.

"After carefully balancing the legitimate interests of the applicant against the interests or fundamental rights or freedoms of the data subjects, the Commissioner finds that the legitimate interests served by disclosure of any information held would be outweighed by the unwarranted prejudice that would result to the rights and freedoms or legitimate interests of the individuals in question in this case.

The applicant had argued that the public have a right to know how their money is managed and that the public have a right to know the details of any mismanagement in order to make an informed decision about their care or the care of a loved one. 

He also noted that SB Cares was a major employer in the Scottish Borders, and prospective employees had a right to know what sort of organisation was trying to hire them, especially when there were allegations of bullying and harassment.

"The Commissioner has given serious consideration to the arguments made by the applicant, but he would note that, while prospective employees may wish to know the details of any allegation of workplace bullying, they would also want reassurance that their personal data would be properly protected in the light of any allegation they themselves may receive in the workplace.

"The test the Commissioner must consider is whether (having already concluded that the information, if it existed and were held, would be exempt from disclosure) it would be contrary to the public interest to reveal whether the information existed or was held.

Disclosure under FOISA was not simply disclosure to the person requesting the information, but rather was a public disclosure. In this case, the Commissioner was satisfied that disclosing the information, if it were held and existed, would breach the first data protection principle.

"While the Commissioner has a deal of sympathy with the public interest arguments put forward by the applicant, he is aware that the action of confirming or denying whether the information exists or is held would have the effect of confirming whether the allegations made are accurate. This would, of itself, lead to the Council breaching its duties as data controller under data protection legislation. In the circumstances, the Commissioner must find that it would be contrary to the public interest for the Council to reveal whether it held the requested information, or whether the information existed."