This is the Cabinet Office's revised guidance
issued in Feb 2003 following the Campaign's correspondence

1. 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.

2. However, Civil Servants should only make information available in accordance with Government policy and departmental or agency instructions. Requests for such information should be considered under the Code of Practice on Access to Government Information (which can be read on the LCD website)

3. Those considering a request for information should (in the interests of transparency) start with the presumption that the information requested should be disclosed. However, information does not have to be disclosed where one of the specified exemptions would apply, or where disclosure would not be in accordance with the terms of the Data Protection Act 1998 (DPA).

4. Definition of secondment. The Civil Service Commissioners Recruitment Code (Para 2.15) defines secondment as a "voluntary transfer from the permanent employer, intended to be temporary, for a period of normally up to three years and not exceeding five years; and must not affect the employment status of the secondee."

Compliance with the Data Protection Act 1998 (DPA)

5. The Data Protection Act 1998 introduces new conditions, which must be met if personal data are to be processed. Before committing to disclosure, the question of whether disclosure would be lawful under the DPA should be considered. If the identity of the secondee is to be disclosed, that information will be "personal data" for the purposes of the Act, and its disclosure will constitute "processing". For the processing of personal data to be lawful, it must be covered by the relevant Department's DPA registration, and one of the conditions set out in Schedule 2 of the Act must be fulfilled.

The most straightforward way of ensuring that a Schedule 2 requirement is fulfilled is to obtain the consent of each individual secondee to the disclosure of information concerning them (Schedule 2, condition 1).

In instances where secondees refuse to consent to the disclosure of personal data they should be asked to explain the reason(s) behind their decision. If a Department accept that reason not to disclose then that individuals name should not be disclosed.

8. If 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. This will depend on the particular circumstances of the secondee and the nature of the request.

9. If the conditions for legitimate disclosure contained in the Data Protection Act are met, it is likely that disclosure will be justified under the Human Rights Act.

The Code of Practice on Access to Government Information and the Freedom of Information Act 2000

10. The 'Code of Practice on Access to Government Information' establishes the presumption of openness:

"The approach to release of information should in all cases be based on the assumption that information should be released except where disclosure would not be in the public interest"

Indeed, one of the aims of the code is:

"to protect the interests of individuals and companies by ensuring that reasons are given for administrative decisions..."

Thus, information should normally be disclosed. However, it also states that:

'These aims are balanced by the need:

• to maintain high standards of care in ensuring the privacy of personal and commercially confidential information; and


• to preserve confidentiality where disclosure would not be in the public interest or would breach personal privacy or the confidences of a third party, in accordance with statutory requirements"

11. The following categories of information are exempt from the commitments to provide information in this Code (these relate particularly to Interchange):

12. Where a department cannot compy with a request without disclosing information relating to an individual who can be identified from the information it is not obliged to comply with the request unless: it has the consent of the individual to do so; or, the Department, Agency or Crown NDPB feels it is in the public interest to do so, it is free to provide brief details of the main duties secondees undertake while in post.

13. If a secondee refuses consent to the disclosure of his/her name, Departments should make a judgement as to whether disclosure would be reasonable in terms of exemption 12 of the Code - privacy of an individual. If departments have any queries on specific cases, they should consult with their own Freedom of Information/Code of Practice experts who may then, if necessary, consult colleagues in the Freedom of Information Practicioners Group chaired by the Lord Chancellor's Department.

14. The Code does not require departments to acquire they do not possess, but states:

"Information will be provided as soon as practicable. The target for response to simple requests for information is 20 working days from the date of receipt. This target may need to be extended when significant search or collation of material is required. Where information cannot be provided under the terms of the Code, an explanation will normally be given."

15. The Freedom of Information Act 2000, which received Royal Assent on 31st November 2000, will when fully commenced, replace the Code of Practice on Access to Government information. If requests for disclosure of information concerning secondees who have not consented to disclosure are received, those dealing will also need to consider whether they are obliged to disclose by a provision of the FoIA.

Does this guidance affect disclosure of the records of Permanent Staff?

This guidance itself only relates to secondees, and will not affect current practices in relation to permanent Civil Servants (although some of the principles outlined are applicable to permanent Civil Servants).

General Information The Civil Service Commissioners' Recruitment Code states that departments and agencies must take reasonable steps to establish a field of candidates for secondments of more than 12 months. All individuals on secondment from business or other sectors are formally reminded before the arrangement commences that they are subject to the Official Secrets Act, and required to observe the Civil Service Management Code and departmental rules on conduct, including the duty of confidentiality. Secondees are normally paid for by the host department, and do not come free.

Departments and agencies are required to consider whether any conflict of interest is likely to arise when setting up a secondment. They are advised to abandon the proposed arrangement if there is likely to be even a suspicion of a conflict of interest. It follows that where individuals are seconded, they are deployed where there are no conflicts of interest. Civil Service contracts are let in accordance with Treasury Procurement rules.

Annex 1

Data Protection Act (1998) - Schedule 2

CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA

1. The data subject has given his consent to the processing.

2. The processing is necessary -
a) for the performance of a contract to which the data subject is a party, or
b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.

5. The processing is necessary -
a) for administration of justice,
b) for the exercise of any functions conferred on any person by or under any enactment,
c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or
d) for the exercise of any other functions of a public nature exercised in the public interest by any person.

6. -(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.