Correspondence with the
Cabinet Office

1 May 2002

Dear Maurice

SECONDEES TO THE CIVIL SERVICE - DISCLOSURE

I am sorry that it has taken so long to come back to you on this. As you saw last week in Hansard we have reissued the guidance to departments. I am pleased now to enclose a copy for you.

You will see from the guidance that we have come some way towards your position on the Data Protection Act. We are advising departments to tell secondees at the start that their names will be disclosed if asked for without actually making it a "condition" of their secondment. This follows our legal advice and was the basis on which the Treasury decided to disclose names. I am confident therefore that this should cease to be an issue. If not, then we will have to look again at what our lawyers say.

Yours sincerely,

John Barker

Mrs Tessa Stirling
Historical & Records Division
Cabinet Office
Hepburn House
Marsham Street
London  SW1P 4HW

2 May 2002

Dear Mrs Stirling,

Thank you for your letter of 22 April and the helpful clarification of the position in relation to "specified information" under the Data Protection Act.

Could I ask whether you are now in a position to respond to my request of 28 March for details of staff seconded to the Cabinet Office? I am sorry to appear impatient, but as you know we have been raising this issue with government since July 2000 and I had assumed that the Cabinet Office review of policy in this area, coupled with the full disclosure by the Treasury, had settled the matter.

However, progress seems to have been painfully slow at every stage (see for example the enclosed correspondance with John Barker at the Cabinet Office). If the Cabinet Office itself is still not in a position to release the information my inclination would now be to ask the Ombudsman to look at the matter.

Yours sincerely,

Maurice Frankel
Director

2 May 2002

Dear Maurice Frankel

Thank you for your letter of 28 March 2002 concerning your request made under the Code of Practice on Access to Government Information about staff seconded to the Cabinet Office from the private sector.

I apologise for the delay in responding but I hope to be able to send you a substantive reply as soon as possible.

Yours sincerely,

Mrs Tessa Stirling

Mrs Tessa Stirling
Historical & Records Division
Cabinet Office
Hepburn House
Marsham Street
London  SW1P 4HW

18 June 2002

Dear Mrs Stirling,

Secondments to the Cabinet Office

I would be grateful if you could tell me what if any decision you have reached in relation to my request of March 28 for the identities of staff seconded to the Cabinet Office.

In particular, have you decided (a) to release or withhold the information (b) or to release it subject to the consent of those concerned.

If any approach has been made either to the individuals on secondment or the organisations from which they have come, in connection with the possible disclosure of their identities, could you please supply me with the dates on which these approaches were made and anonymised copies of any communications from the Cabinet Office to the individuals/organisations and their replies. Please treat this request under the terms of the Open Government code.

Yours sincerely,

Maurice Frankel
Director

12 July 2002

Dear Maurice Frankel

Thank you for your letter of 18 June 2002 in respect of your request of 28 March 2002 under the Code of Practice on Access to Government Information.

I can now advise you that the Cabinet Office has reviewed its policy on revealing the identities of those officers on secondment from the private sector and will in future release details subject to the consent of the secondee.

At 'A' is a copy of the letter which sets out the background to our policy review and your request that has been sent to the secondees from the private sector who joined the Cabinet Office in the period 1 April 2001 - 21 May 2002 and are still in post. The table at 'B' reflects the outcome of that exercise. You will see that not all individuals have given consent for their names to be disclosed. We have not contacted those who were seconded to the Cabinet Office during the relevant period but have since left the department. To be halpful, however, at 'C' are details of areas in which such individuals worked and their organisation from which they were on secondment.

Yours sincerely,

Tessa Stirling
Head of Division

B

C

Mrs Tessa Stirling
Historical & Records Division
Cabinet Office
Hepburn House
Marsham Street
London  SW1P 4HW

November 11, 2002

Dear Mrs Stirling,

Open government code: request for internal review

Thank you for your letter of July 12 enclosing details of many of the secondments to the Cabinet Office, and the letter sent to secondees in connection with my request. I am grateful for this response, which I recognise represents a move to a more open approach.

However, although you have released information about those secondees who have agreed to being identified, the names of several who have not consented has been withheld. I would like the decision to withhold these names to be reviewed under the open government code.

The decision has not been explained by reference to any code exemption, or any provision of the Data Protection Act:

• If the department is relying on the code's privacy exemption I question whether this disclosure would be "an unwarranted invasion of privacy" (exemption 12). In any event, this exemption is subject to the code's public interest test which I believe would justify disclosure in this case.

 

• If the department is relying on the Data Protection Act, it does not appear to have addressed the points set out in my letter of March 28 which (a) explained why we believe that disclosure without consent would not contravene the Act (b) enclosed a letter from the Information Commissioner supporting this view and (c) attached a letter from the Treasury also accepting this view, and explaining that they have decided to publish the names of their secondees, without consent because "it is legitimate to put this information into the public domain, without consent, in pursuit of a policy of openness, accountability and transparency".

 

• If you are relying on some other ground (such as the policy set out in the Cabinet Office's Civil Service Corporate Management and Reform unit's disclosure statement 1) I suggest that you are not entitled to do so under the code.

Under the Cabinet Office's present approach, secondees are allowed to dictate whether they can be identified. Their wishes are apparently respected regardless of any public interest in openness and regardless of whether there is any affect on their privacy.

The policy allows secondees to prevent their names being released (a) even if they have already been publicly identified as secondees, or (b) if the seconding organisation asks them do so for its own reasons, though they themselves may have no objection to being identified. The organisation might believe that by keeping a low profile it will avoid potentially embarrassing questions about a possible conflict of interest.

But it is precisely in such cases where the department most needs to be open. If a particular secondment is found to represent a possible conflict of interest, perhaps calling into question the integrity of the department's actions, it will be expected to account for itself. Code exemption 12 and DPA Schedule 2 would allow it to identify the secondee in these circumstances. Yet the department's own policy would prevent this happening, allowing the secondee to veto disclosure, even to Parliament. The public interest in accountability has been completely ignored.

The department's letter to secondees says that in future new secondees will be asked whether they consent to disclosure before they join the department "and their response will be included in their contract". I recognise that this is intended to facilitate disclosure, but what will happen if the secondee refuses consent? Will the department be contractually bound not to reveal that he or she is a secondee? That would be an grossly disproportionate restriction, given the negligible privacy interest involved.

The shortcomings of the approach are revealed by the fact that some staff have refused to be named despite being publicly identified as secondees already. For example:

• one of the KPMG secondees who has not agreed to be identified is named on the Cabinet Office's own web site.2

 

• a secondee from Wolverhampton City Council has withheld consent despite being identified as on secondment to the Office of the E-Envoy on several web sites.3, 4

This is a predictable outcome of a policy which gives the individual's preference absolute priority regardless of the circumstances.

The Data Protection Act

I believe secondees could be identified, regardless of their consent, without breaching the Data Protection Act and that this would in general be fair in DP terms and justified under both paragraph 5(c) and paragraph 6(1) of Schedule 2 of the Act.

(1) For this disclosure to be unfair secondees would have to have been led to believe that their identities as secondees would be concealed. There is no such suggestion in the Cabinet Office Interchange Good Practice Guide or the model contract used for secondees which it contains.5

Secondees are brought in to government because of the private sector perspective or expertise that they can bring to the department's work. Their external affiliations are no doubt routinely disclosed to civil service colleagues and others, since it explains why they are there at all. I cannot see how it would be unfair to the secondee to make this information more widely known, particularly as it does not relate to their personal or family lives. Published reports of the Performance and Innovation Unit, for example, list the names of secondees who have worked on them, suggesting secondees are likely to realise that they will be identified.

To comply with the fairness requirement, surely all that is required is to inform the individuals in advance of any disclosure and give them the opportunity to point to any specific prejudice to their interests that might result.6 So long as the department's final decision takes account of such representations, it would have acted fairly in DP terms.

(2) The disclosure would also have to be justified under Schedule 2 of the DPA. The schedule sets out 6 broad grounds under which disclosure might be justified - 5 of which do not require the individual's consent. As you know, the Treasury has accepted our view that disclosure is justified under paragraphs 5(c) and 6(1).

(3) Paragraph 5(c) permits disclosure where this is necessary for the exercise of a government department's functions. The Interchange Good Practice Guide makes clear that "Individuals attached to departments under the Interchange Initiative should ensure that in the course of their duty there is no conflict of interest that will cause embarrassment either to their organisation or to the department or agency. This is particularly important for secondments." There is clearly scope for conflict of interest where secondees hold positions that may give them an advantage in securing contracts for their employers, shaping government policy or influencing regulatory decisions affecting their organisations. I enclose an article from the Guardian of July 1 this year which raises concerns about the secondment programme. Any suggestion of unnecessary secrecy is bound to foster suspicion about this exercise, whether or not it is justified. Openness in itself may not be enough to allay such concerns, but it is certainly a precondition - that is, it is "necessary" within the meaning paragraph 5(c) of Schedule 2.

It must also be damaging to the department's own interests to blur the distinction between career civil servants and temporary secondees from commercial bodies, to the point that the public do not know who is responsible for government policy or who they are dealing with when they contact a department. Someone making representations to a department about the conduct of a regulated private body needs to know that they are not actually talking to an employee of that body; a business providing confidential information to a department needs to know that it is not sharing the information with one of its competitor's staff. Such concerns suggest why transparency is necessary in the department's own interests.

(4) Paragraph 6(1) permits disclosure where this is necessary for the applicant's, or the public's, legitimate interests and is not unwarranted by any prejudice to the rights, freedoms or legitimate interests of the individual concerned.

The first half of this equation - the public interest in disclosure - is acknowledged in the recent Civil Service Corporate Management and Reform unit's policy which states:

"It is important (for reasons of transparency) that information concerning inward secondees is available to third parties. The general public has a right to be able to check that the government is not taking on secondees who are for some reason unsuitable or who will encounter a conflict of interest during the course of their work".

Do the secondees have any legitimate interest in confidentiality strong enough to outweigh this public interest? To justify withholding information under paragraph 6(1) there must be some detriment in the individual's "particular case". This might be a reasonable belief that to be named would expose someone to risk of attack, impede their recovery from illness, prejudice their effectiveness in a job that requires "undercover" activity, damage their employment prospects or cause them to be shunned by friends or colleagues.

There is no suggestion in your letter of July 12 that is the case. The enclosures suggest that secondees have merely been asked to say whether or not they want their names to be released - not whether they believe that disclosure would harm them. Revealing that someone has been seconded to work at a high level in government will enhance, not damage, their reputation. In the absence of evidence to the contrary, the balancing act under paragraph 6(1) must come out in favour of disclosure.

For similar reasons, I do not believe that this disclosure would be an "unwarranted invasion of privacy" under the code, still less one that outweighed the public interest in openness.

The second data protection principle requires that data should not be 'further processed' for any purpose incompatible with the purpose for which it was originally obtained. The Interchange Good Practice Guide stresses the need to avoid conflict of interest in the secondment process. This disclosure is intended to further that objective.

The new policy

The department's letter to secondees of 30 April explains that the new approach reflects the recent CSCMR policy on the identification of secondees. Although the policy is a step forward, it still has significant shortcomings.

(1) The letter says that under the new policy "in future, whenever a request is received it will, in the interests of transparency, be presumed that the information requested should be disclosed". It then goes on to say "It is only intended to release the names of individual secondees who have agreed that they are content for us to do so". In what sense can there be any presumption in favour of disclosure, if in practice this information cannot be disclosed without the individual's consent?

(2) The letter states that the only exceptions to the presumption in favour of disclosure will be "where there is a 'public interest' objection to disclosure, or where disclosure would not be in accordance with the terms of the Data Protection Act". Neither of these tests can be satisfied merely by asking the secondees whether they are prepared to be identified.

(3) The CSCMR document is not correct in stating that "Under the terms of the DPA, DepartmentsÉare at liberty to name individuals if they feel it is in the public interest and that they have the full agreement of the individual and the organisation they are seconded from". This is wrong on two counts (i) departments need either consent or public interest grounds - not both; (ii) the suggestion that the organisation's consent is needed is wrong and will seriously mislead those operating the policy. The organisation's views are irrelevant to any decision under the DPA, which protects the rights of individuals, not employers.

(4) The CSCMR document correctly states that where consent is refused "those considering the request will have to look at whether any of the other requirements set out in Schedule 2 are fulfilled." However, the department has ignored this advice.

I hope therefore that you will reconsider the decision to withhold the names of Cabinet Office secondees who have not agreed to be identified.

Yours sincerely,

Maurice Frankel
Director

19 February 2003

Dear Maurice

OPEN GOVERNMENT: SECONDEES

Thank you for your letter of 11 November. I apologise for the delay in replying but as you will appreciate your letter raised a number of important points, which we wanted to ensure were fully considered. You also wrote to John Barker, Director of Recruitment, Development and Senior Staffing in the Cabinet Office on 13 November about the department's guidance on the disclosure of information about secondees and I am also replying on his behalf.

We have carefully considered the points you made and, on reflection and in the light of further legal advice, we consider that the guidance we issued on secondees took insufficient account of the public interest test in the Code of Practice on Access to Government Information. The guidance has now been redrafted, and I attach a copy of the latest version. You will see that, if a request is received for information about a secondee, he or she will still be asked for his/her views on the disclosure, but refusal of consent alone will not be sufficient reason to withhold the information under exemption 12 of the Code. A public interest test will also be applied and the presumption will generally be that, in the absence of any unusual circumstances, information should be disclosed. Only if a secondee can identify specific factors which, for instance, could cause him distress or put him at risk, should withholding the information be considered. In such circumstances, a careful evaluation would be made of the respective merits of the public interest, and the potential harm to the secondee. The views of the seconding organisation will be considered only insofar as they have a bearing on the potential harm, or if they are claiming exemption from disclosure on grounds other than exemption 12.

In light of the above, we are currently writing to those secondees who previously refused consent to disclosure of their names. We will explain to them that their names can be withheld, but only if they can identify specific reasons which would justify such a course. I will write to you again as soon as the necessary enquiries have been completed.

Yours sincerely,

Tessa Stirling
Head of Division

Mrs Tessa Stirling
Historical & Records Division
Cabinet Office
Hepburn House
Marsham Street
London  SW1P 4HW

18 June 2002

Dear Tessa,

Secondments to the Cabinet Office

In your letter of February 19 you explained that the Cabinet Office was writing to those secondees which had previously refused consent to be identified to say that they would be identified unless they could provide specific reasons to justify their anonymity. I wondered if there had now been any progress in the clarifying the position of those involved?

Yours sincerely,

Maurice Frankel
Director

14 May 2003

Dear Maurice

OPEN GOVERNMENT: SECONDEES

Thank you for your letter of 8 May. I must apologise for the long delay in replying to you and more particularly for the fact that we are not yet in a position to send you a final reply. I am afraid that because of changes of personnel in our Human Resources department, we are having difficulty in identifying the relevant secondees. I hope, however, to be in a position to send you a full reply in the near future.

Yours sincerely,

Tessa Stirling
Head of Division

25 June 2003

Dear Maurice

OPEN GOVERNMENT: SECONDEES

I am now, finally, in a position to give you a full reply to your letter of 11 November about the names of secondees. I apologise again for the length of time ut has taken to issue a substantive reply.

My letter to you of 12 July 2002 listed seven organisations which had seconded staff to the Cabinet Office, who had withheld their consent to being named. They were from KPMG (2 staff), BSkyB, Six Continents, University of London, Wolverhampton City Council and Boston Consulting. Of those, the secondees from BSkyB, Wolverhampton City Council and one from KPMG have now left the Cabinet Office. We have contacted the remaining four again, and in the light of their further views, I am able to disclose their names. They are:

I hope that this answers your query satisfactorily.

Yours sincerely,

Mrs Tessa Stirling