Correspondence with the
Department of Trade & Industry

Mr Graham Rowlinson
Head of the Open Government Unit
Department of Trade & Industry
1 Victoria Street
London  SW1H 0ET

12 July 2000

Dear Graham,

This is a request under the Open Government code of practice for (a) the names of staff who have been seconded to the DTI from the private sector since the May 1997 (b) the name of the organisation from which each has come (c) details of responsibilities of each within the DTI and (d) an indication of who pays the salary of each (note that this is not a request for the actual salary, merely to be told who pays it).

If you consider that any of this information is exempt, could you supply so much of the information as you do not regard as exempt. I am aware of the Parliamentary Answer of 11 February 2000 which lists the companies from which secondees have come, but not the other details referred to above.

I look forward to hearing from you within the code's 20 day period.

Yours sincerely,

Maurice Frankel
Director

28 July 2000

Dear Mr Frankel

INFORMATION ON INDIVIDUALS ON SECONDMENT TO DTI

Thank you for your letter of 12 July to Graham Rowlinson, Head of the Open Government Unit in DTI, which was received on 18 July and which has been passed to me for reply.

In asking for details of individual secondees into the department from the private sector you mention that you are aware of the Parliamentary Answer of 11 February given by Dr Howells, Minister for Consumer and Corporate Affairs. You may not be aware of a further Parliamentary Answer given on 3 July in response to a question from Don Foster MP. This gives much of the information you are now seeking with the addition of the Civil Service grade of the post into which the secondee was placed and with the exception of details of who paid the salary to each individual. A copy of the question and answer is attached.

As the answer of 3 July makes clear, for data protection and privacy reasons it is not possible to give names of individuals. Nor is it possible to identify their responsibilities more closely than given in the answer, first because to do so would make it possible to identify individuals still in post and second because for those secondments that have been completed the information is not held centrally. Section 8(a) of Part II of the Code of Practice on Access to Government Information provides that information may be withheld if to disclose it would constitute an unwarranted disclosure to a third party of personal information about any person.

Personal information may be revealed provided the data subject has given their consent. However, seeking such consents in order to provide the information you have asked for would require consultation with 165 individuals, many of whom are no longer on secondment to the Department and some of whom may no longer work for the company by which they were employed when they were on secondment. Undertaking such a consultation exercise would require unreasonable diversion of departmental resources.

In respect of payment of salary, the Department has no locus in paying individual secondees. Secondment is a temporary transfer into the department for a limited and defined period which has no impact on the permanent employment status of the individual. Responsibility for payment of salary therefore remains that of the permanent employer throughout the period of the secondment. In general, but not in every case, the seconding company is reimbursed by the department for the services it is providing. The level of reimbursement is within the rate of the pay range, applicable at the time of the secondment, for the Civil Service grade of the post.

If you are dissatisfied with our decision in respect of the response to some of the information you have requested you may, in accordance with paragraph 11 of Part I of the Code write to me to ask for the decision to be reviewed internally. It would be helpful in that event if you would set out your reasons for questioning our decision. If you are dissatisfied with the result of any appeal your further recourse on the matter would be through a Member of Parliament to the Parliamentary Ombudsman who has power to investigate a refusal of information.

I hope this is helpful.

Yours sincerely,

Maureen Verral

Ms Maureen Verrall
Department of Trade & Industry
1 Victoria Street
London  SW1H 0ET

17 August 2000

Dear Ms Verrall,

Thank you for your letter of July 28 in response to my request for information about individuals seconded to the DTI.

You state that the names of the individuals concerned cannot be disclosed without their consent and that seeking consent would involve an unreasonable diversion of the department's resources. I am writing to ask that you review this decision in accordance with the requirements of the open government code.

The identities and responsibilities of civil servants in the higher grades are disclosed in the Civil Service Yearbook. I cannot see why the identities and functions of secondees, identified as such, should be concealed: they are carrying out the functions of civil servants and are contractually required to comply with the rules governing the conduct of civil servants.

Given the potential for conflict of interest there should, if anything, be greater transparency about secondees. They may be working on policy issues affecting their company or industry; they may be in a position to influence contracts or regulatory decisions affecting their company; and they may have privileged access to information of commercial value. The potential risks are recognised in the Cabinet Office's Interchange Good Practice Guide which states:  "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."

The case for transparency, as a safeguard against conflict of interest, is recognised in a range of initiatives from the Register of MPs' interests to the publication of financial interests of external members of official bodies. Thus independent experts on bodies such as the Committee on Safety of Medicines are now required to disclose shareholdings and other financial interests on a public register.

The department's policy amounts to the reverse approach. Identifying the companies from which secondees have come reveals enough to suggest that conflicts of interest could arise. Withholding the actual names only maximises the uncertainty. For example, private sector staff from specified companies are listed as working for the DTI's 'Company Law and Investigations' section, one of the most sensitive areas. Because the names of the individuals involved are not given people will not know who in the relevant section is the private sector employee, and assume it may be anyone. Someone complaining to the department about one of the companies providing secondees may have to assume that they are talking to an employee of that company. This is an extraordinary state of affairs.

What makes this policy all the more remarkable is that, until recently, secondees to the DTI were publicly identified. After receiving your letter I discovered that in Hansard of 11 February 1999 at column 405 the DTI minister Kim Howells listed the names of 135 secondees to the DTI. The current refusal to disclose is therefore a reversal of previous policy.

It appears that these 135 names form the bulk of the 165 names which I have asked for and you say cannot be disclosed. To claim that even this published information is exempt strikes me as less than helpful, and I wonder why it was not possible to refer me to this Hansard?

You say that seeking consent of the 165 individuals would require 'unreasonable diversion of departmental resources'. However, given that 135 of the 165 staff employed from May 1997 to the present have been named, consent would have to be sought from only a further 30. Contacting them is surely not an 'unreasonable diversion of resources'.

As an aside, I wonder if you can tell me whether, before disclosing the 135 names, each secondee was individually asked for consent? If they were, it suggests that this was not regarded as unreasonable. If they were not, it suggests that any concern for privacy (which we think should not be an issue here at all) was rightly considered secondary to the public interest in openness.

I assume that the change of policy on disclosure has been prompted by the Data Protection Act (DPA) 1998 which came into force this March. However, as your letter recognises, the Act does not prohibit such disclosures if the secondees consent to disclosure.

The disclosure could take place even without consent, if it complied with the data protection principles. The first principle appears the only potential problem. This requires that disclosure be fair and lawful and meet at least one of the conditions set out in Schedule 2 of the Act.

This disclosure would not be not unlawful. It would also be fair, given that the names of secondees have recently been published in Hansard. If secondees know that their identities were likely to be disclosed, such a disclosure would be 'fair' in data protection terms.

One of the conditions set out in Schedule 2 of the DPA must also be met. The most relevant may be paragraph 5(c), which permits disclosures which are necessary for the exercise of the department's functions. The fact that the department itself chose to publish these names in the past, suggests that this condition is satisfied.

The disclosure also appears to be justified under paragraph 6 of Schedule 2. This allows personal data to be disclosed where it is in the legitimate interests of the person seeking information, and the disclosure is not unwarranted because of any prejudice to the secondee's rights, freedoms or legitimate interests. I do not see that revealing that someone who carries out a civil servant's functions actually works for a private company could prejudice that individual's rights. It is however of legitimate interest to others.

We deal with the DTI from time to time on matters involving industries for which it has some form of responsibility, such as BNFL. A number of DTI secondees have come from the nuclear industry, including BNFL. When we contact the DTI about such matters, are we actually dealing with a civil servant or with a representative of the industry concerned? We have a 'legitimate interest' in knowing which. The same will be true for countless other organisations.

Finally, may I repeat that my request is for the names of secondees and their responsibilities, and that the latter is not satisfied merely by identifying the section of the department in which they work. If you consider that providing this information for all seconded staff employed since May 1997 would involve unreasonable effort, would you please provide the details for current secondees.

Yours sincerely,

Maurice Frankel
Director

Ms Katharine Elliott
Director, Senior Staff Management
Department of Trade & Industry
Kingsgate House
66-74 Victoria Street
London  SW1E 6SW

30 October 2000

Dear Ms Elliott,

Information on Individuals on Secondment to DTI

I wonder if you are yet in a position to respond to my letter of August 17 to Maureen Verrall asking for the department to review its response to my request for information about DTI secondees?

Yours sincerely,

Maurice Frankel
Director

17 November 2000

Dear Mr Frankel

INFORMATION ON INDIVIDUALS ON SECONDMENT TO DTI: INTERNAL REVIEW UNDER CODE OF PRACTICE ON ACCESS TO GOVERNMENT INFORMATION

Thank you for your letter of October 30 following up your earlier letter of 17 August requesting an internal review of our decision to refuse you certain information relating to secondees in DTI.

The provision of information relating to secondees is an issue that affects all government departments. As you know the provisions of the Data Protection Act apply to information held on individuals. How those provisions are applied to information on secondees is set out for departments in central guidance from the Cabinet Office as it is important that there is consistency of approach.

Following your request we are looking seriously at the current position on the provision of information on secondees. In doing so we are obliged to take the views of other departments and have therefore asked the Cabinet Office to consult at a senior level. That consultation has necessarily taken some time to conduct but we are hopeful that in the next two to three weeks we will be in a position to respond to you in full.

I can assure you that the internal review is being pursued seriously and as quickly as possible in the circumstances.

Yours sincerely,

Katharine Elliott
Director, Senior Staff Management

Ms Katharine Elliott
Director, Senior Staff Management
Department of Trade & Industry
Kingsgate House
66-74 Victoria Street
London  SW1E 6SW

10 January 2001

Dear Ms Elliott,

Internal Review of Code of Practice Request: Identities of individuals seconded to DTI

In your letter of November 17, you said that you expected to be able to respond in full to my request for an internal review of the DTI's refusal to supply certain information about DTI secondees "in the next two or three weeks".

I wonder if a reply is now imminent? Given that I requested the review nearly 5 months ago (and the DTI's response target is 20 working days) I am close to drawing the delay to the attention of the Parliamentary Ombudsman.

Yours sincerely,

Maurice Frankel
Director

23 January 2001

Dear Mr Frankel

INFORMATION ON INDIVIDUALS ON SECONDMENT TO DTI: INTERNAL REVIEW UNDER CODE OF PRACTICE ON ACCESS TO GOVERNMENT INFORMATION

Thank you for your letter of 10 January. I am very sorry that it has taken us such a long time to let you have a substantive response on this issue.

As I explained in my letter of 17 November, because the provision of information relating to secondees is an issue affecting all government departments, following receipt of your request we asked the Cabinet Office to review their guidance to departments on the question and they in turn have consulted Treasury Solicitors.

We understand that revised guidance to departments will be circulated very soon. The main premise of the revised guidance will be a presumption that information requested about individual secondees, and which departments hold, should be made available provided that departments have the consent of those individuals. This is very much in line with DTI wishes, and indeed reflects the position we used to take prior to the entry into force of the Data Protection Act.

In anticipation of the revised guidance we are therefore writing to all our current secondees to ask for their consent to make public details of their secondment. This will involve writing to around 112 individuals and we would hope to be able to let you have a list of current secondees and a description of their responsibilities before the end of next month.

For all future inward secondments we will seek individuals' consent at the outset of each secondment period to details being released.

I hope this reassures you that we are acting as best we can to accede to your request and can only apologise once again for the time it has taken to resolve the position across departments.

Yours sincerely,

Katharine Elliott
Director, Senior Staff Management

Ms Katharine Elliott
Director, Senior Staff Management
Department of Trade & Industry
Kingsgate House
66-74 Victoria Street
London  SW1E 6SW

28 March 2001

Dear Ms Elliott,

Information on Individuals on Secondment to DTI

In your letter of January 23 you said you hoped to let me have details of current secondees by the end of February. I wonder if you have now managed to collate the details?

Yours sincerely,

Maurice Frankel
Director

2 April 2001

Dear Mr Frankel

INFORMATION ON INDIVIDUALS ON SECONDMENT TO THE DTI: INTERNAL REVIEW UNDER CODE OF PRACTICE ON ACCESS TO GOVERNMENT INFORMATION

Further to my letter of 21 January I had hoped to have been able to let you have the information you had asked for by now, and I wanted to let you know where things stood. We have approached our 112 secondees and have approval from all but a handful of them to release their details. The remainder have been in and out of the country over the past few weeks and have proved a little difficult to track down. We are pursuing this urgently. Once again I am extremely sorry for the length of time this process is taking and am grateful to you for your forbearance. I can assure you that the delay is entirely due to our desire to meet your request in full.

Yours sincerely,

Katharine Elliott
Director, Senior Staff Management

17 May 2001

Dear Mr Frankel

INFORMATION ON INDIVIDUALS ON SECONDMENT TO THE DTI

I am sorry that it has taken us such a long time to let you have the information which you asked for about people on secondment to DTI. As I believe my officials have explained to you, this is a Whitehall wide issue, affecting all departments.

In the past we regularly provided this information in the interests of openness about who was doing what in the department. But following the introduction of the Data Protection Act 1998 the Cabinet Office advised departments that they could no longer publish individual secondees' names. In the light of your letter last August I asked the Cabinet Office to reconsider this policy. They have done so, taking advice from the Treasury Solicitor.

Their revised advice is that we can publish this information provided we have the individuals' consent to do so. It has taken us some time to get the consent of all our secondees, but we now have this, and we will be publishing the information in a PQ as soon as the House reassembles.

From now on we will be asking secondees for their consent at the outset of the secondment, so in future there should not be any delay in providing this information.

It is my intention to provide this information to Parliament on an annual basis.

I hope this is helpful.

Yours sincerely,

Stephen Byers