Challenge to secrecy over
private sector staff in Whitehall

Introduction

Should officials' names be kept secret in order to protect their privacy? Is it an invasion of privacy to reveal which public servant wrote a report, which official took a decision or which "civil servant" is actually employed by a private company and temporarily seconded to work in government? The Campaign doesn't think so - and has successfully challenged the government departments who do. The process has involved a mountain of correspondence - and taken nearly three years.

Under the Data Protection Act 1998 (DPA) any information about an identifiable individual is "personal data" and can only be disclosed if certain conditions are met. This means that there is no blanket prohibition on the release of such information. However, some public authorities have adopted a simplistic approach which assumes that anything which identifies an individual - even civil servants' names - cannot be disclosed at all, or can only be disclosed with the individual's explicit consent. This policy could allow officials to block any disclosure which identified them, even where there is no genuine issue of privacy.

The potential problems can be seen from the government's response to requests for information about private sector employees who have been seconded to work for government departments.

Secondees continue to be paid by their private employers, but act as civil servants, returning to their original employers once the secondment is over. This may raise questions about possible conflicts of interest. Do seconded staff work on policies or regulatory decisions affecting their companies? Do they gain unfair advantage in securing contracts? Openness about their secondment is at least part of the answer.

Using the open government code, the Campaign asked government departments for the names of seconded staff, the organisations from which they had come and to explain the work they do for the department.

The DTI initially responded by refusing to identify any of its secondees. It claimed that for data protection and privacy reasons it could not name individuals without their consent, and that the work involved in asking for consent would be an unreasonable diversion of its resources. The Campaign challenged this refusal under the code, arguing it would not be unreasonable to seek consent, and that in any case the department was legally entitled to disclose the information without consent.

This led the DTI to reconsider its approach. It decided to ask secondees for permission to publish their details. After a long delay it told us that all 112 staff seconded during the past three years had agreed to be identified and published the names. Stephen Byers, the then Trade & Industry Secretary, told the Campaign that this information would be published annually in future.

In response to a similar request, the Treasury initially released the names of staff who had agreed to be identified - only 7 out of 15 seconded staff. It refused to identify the other 8, claiming that without their consent it was prohibited from doing so by the Data Protection Act (DPA). The Campaign also challenged this decision. We pointed out that at least one of the 8 staff had been publicly identified by his employer already, and in any case the DPA did not prohibit disclosure of this information without consent. We set out our reasons for this in a detailed letter.

The Treasury reviewed its original decision, and after some delay agreed with the Campaign that it was able to identify secondees - regardless of whether they had given their consent. This decision, based on the Treasury's own legal advice, sets an important precedent for disclosure of such information.

The Cabinet Office initially refused to disclose the names of any secondees. When the Campaign challenged this decision it introduced a new policy of identifying those secondees who had agreed to the release of their names. The Campaign challenged this policy too, and the Cabinet Office finally adopted a new policy of identifying all secondees, regardless of their consent, except where the individual could show that publicity would harm them in some way. In February 2003, the Cabinet Office issued guidance along these lines to all Whitehall departments.

The correspondence with the DTI lasted over a 12 month period; that with the Foreign Office took 7 months while the Cabinet Office correspondence has so far taken 14 months. Overall, it has taken 3 years to establish this simple but important point, as department after department raised the same, unjustified, objections to disclosure - a testament to Whitehall's pathologically cautious approach to freedom of information. You can read the correspondence by following the links below.