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Suzanne Garoghan
Career Development Team
HM Treasury
Allington Towers
19 Allington Street
London SW1E 5EB
14 June 2001
Dear Ms Garoghan,
Thank you for your letter of May 22 identifying 7 of the 15 individuals seconded to the Treasury.
However, the identities of 8 of the 15 individuals have been withheld, because the individuals concerned have not agreed to be identified. You suggest that this is because the Data Protection Act (DPA) does not allow the Treasury to disclose such information without the individuals' consent. For the reasons set out below, I do not agree that the DPA has this effect. I am therefore asking for the Treasury to review this decision, as required by the code.
Leaving the legal argument aside, I am extremely surprised to hear that more than half of those seconded to the Treasury wish to conceal their identities from the public. This contrasts with the position in the DTI where, following a similar request by the Campaign, all 112 secondees have, without exception, agreed to be identified. The implication is either that most of the Treasury secondees believe their placement raises questions that they would prefer were not asked, or that they are reflecting a reluctant approach to openness on the part of the Treasury.
My surprise at this response is all the greater on discovering that at least one of the individuals whose identities are being withheld is readily identifiable from published sources. The Institute for Fiscal Studies' website identifies Julian McCrae, a senior research economist, as a secondee ("Julian is on secondment to HM Treasury until April 2001") 1. I understand that Mr McCrae's secondment is still continuing. It seems bizarre that the identities of seconded staff should be protected on data protection (ie privacy) grounds even where this information has been widely disclosed, presumably with the individuals' agreement.
In light of this, I should like to make a further request. Could you please supply me (if necessary after deleting names of the secondees involved) with copies of (a) the letter sent to them inviting consent to disclosure, and (b) their replies and any subsequent correspondence with them about this. Please treat this as a request under the terms of the Code of Practice on Access to Government Information.
Could I also point out that my original request was not merely for the names of the individuals, but for their organisations and responsibilities. The last two classes of information could have been provided, even without the names. The Treasury has previously released such information in Parliamentary Answers (eg 10/12/98, col 301), and I would appreciate it if this information could be supplied to me promptly.
Finally, I wonder if you could explain why the information which you have provided is marked "Confidential". This classification also appears on your letters of March 6 and May 22. I should be interested to know the rationale for replying in this way, given that my request has been made under the open government code of practice, with a view to making the information public (and I shall in fact be making it public).
Turning to the Data Protection Act, I agree that the names of the individuals on secondment are 'personal data' under the Act. However, the Act does not prohibit the publication of personal data without consent. It allows disclosure, so long as this does not breach any of the data protection principles.
The most relevant principle appears to be the first. This requires that disclosure must be fair and lawful and meet one of the conditions in Schedule 2 of the DPA.
One important indicator of whether disclosure is fair is whether the individual has been deceived or misled about the prospect of it occurring.2 This might be the case if secondees were guaranteed anonymity on being offered their post; or promised that the fact that they were not career civil servants would deliberately be concealed from the public. There is no such suggestion in the Cabinet Office guidance on secondment, or in its proposed terms and conditions for secondees.3 On the contrary, secondees have in the past often been identified in Parliamentary Answers.4 This is likely to have created an expectation that their names could be made public. In this case disclosure could hardly be 'unfair'.
I am sure that the fact that these individuals are on secondment, and not career civil servants, is already widely known within the department, and to the professional and business contacts of the individuals concerned. No doubt those who speak at conferences refer to it in the biographical notes circulated to the audience. Former secondees seem to give this fact particular prominence in their CVs.5 Secondment to the Treasury appears to be regarded as a desirable career move, not something whose disclosure would embarrass or disadvantage those involved. If the Treasury decided, in the interests of accountability, to disclose their names I do not see how this could be unfair.
Nor would it be unlawful unless there was an explicit obligation of confidentiality, which I take it is not the case.
As to the question of 'consent', it is clear from Schedule 2 of the DPA that this is not required so long as one of the conditions in paragraphs 2 to 6 of that Schedule is met. Two conditions are particularly relevant:
- paragraph 5(c), permits disclosure if it is necessary for the functions of a government department.
- paragraph 6(1) permits disclosure if it is necessary for the legitimate interests of the person to whom the data are disclosed, and the disclosure is not unwarranted because of prejudice to the rights and freedoms or legitimate interests of the data subject.
A precedent here is provided by the publication of civil servants' identities and functions in the Civil Service yearbook. I understand that this is done without the individual consent of the officials concerned. The Cabinet Office say they regard this disclosure as justified under paragraphs 5(c) and 6(1) of DPA Schedule 2 (see enclosed letter). The disclosure of the identities of secondees would be entirely consistent with this approach.
There are particular reasons why the identities of secondees should be known. Although some secondees come from the public sector, others may come from private bodies and may raise questions about commercial advantage or even conflicts of interest. They may be working on policy issues affecting their company or industry; their access may give them an advantage in securing contracts or clients; or they may be in a position to influence regulatory decisions affecting their company. The risks are recognised in the Cabinet Office's 'Interchange Good Practice Guide' which states that individuals "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".
Allegations that companies had benefited improperly as a result of secondments were made in the press last year, when the Observer reported on 25/6/00 that: "Oil companies, financial consultants and building firms who have 'donated' staff free to the Treasury have won lucrative government contracts and profited from crucial policy changes". (See attached article.)
The best answer to such allegations is transparency - to demonstrate that conflicts of interest do not occur. The secrecy achieves the opposite effect. Giving individual secondees the right to veto any disclosure of their identities, which so many of them have chosen to exercise, can only encourage the suspicion that the individuals or their organisations, or the Treasury itself, have something to hide.
There is another reason for openness. People dealing with government departments generally assume that they are dealing with career civil servants, not with representatives of business organisations who will return to their companies in a few months time. There may be circumstances when they will not be prepared to share information with the latter, for example, if they are raising a matter in which the sponsoring company has a direct interest. It cannot be in the public interest to conceal this fact from them. The effect may be to encourage anyone who has such reservations to treat all Treasury staff with caution.
I understand that following our request to the DTI, government policy on identifying secondees has been reviewed and that new guidance is to be issued advising departments that they should identify those seconded to them. By accepting the need for the openness, I submit that the government is confirming that such disclosure is "necessary for the exercise of any functions of...a government department". This is the test under paragraph 5(c) of Schedule 2. The disclosure would therefore not contravene the first data protection principle.
Disclosure is also justified under paragraph 6(1) of that Schedule. It is important for the public to have confidence that companies are not benefiting improperly from such secondments. There is a "legitimate interest" in this information being provided to the public. The only grounds for withholding it would be if there is unwarranted prejudice to the rights of the individuals concerned. Unless exceptional circumstances exist (eg someone's safety is at risk) there would be no such prejudice. On the contrary, knowledge that an individual has been seconded to the Treasury will normally enhance that person's professional reputation and their value to their employer. Indeed some employers regard it as an active selling point.6
The other potentially relevant data protection principle is the second, which requires that personal data must not be processed for any purpose which is incompatible with the purpose for which it was obtained. I am sure that the purpose for which government holds information about its staff must reflect the requirement that government act in an accountable manner.
This request, however, involves a more explicit compatibility of purposes. The passage from "Interchange Good Practice Guide" quoted above indicates that an important consideration in selecting individuals for secondment is to avoid conflict of interest. The same point is made in the proposed terms and conditions which state that secondees must accept the rules governing civil servants' conduct "as if you were a civil servant" adding that their conduct "should not foster the suspicion of a conflict of interest".7 This suggests that the purpose for which my request is made (ie to demonstrate whether any conflict of interest arises) is compatible with the purpose for which the information was collected in the first place. This too suggests that secondees' identities can be disclosed without breaching the Data Protection Act.
I understand the Treasury's policy is that reviews under the open government code are carried out by a member of the Management Board from a different division from that in which the original decision was taken, and that the target for response is 20 working days. Given that the response to my original request took 4 months (compared to a 20 day target), I would appreciate it if the review could be carried out as quickly as possible.
Yours sincerely,
Maurice Frankel
Director
Endnotes
- http://www.ifs.org.uk/staff/julian_m.shtml
- Data Protection Act 1998, Schedule 1, Part II, paragraph 1(1)
- Cabinet Office, 'Interchange Good Practice Guide', 1998, Annex 8
- See Hansard, Commons, Written Answers at 11/2/99, col 405 (naming DTI secondees); 10/12/98, col 286 (naming DfEE secondees); 9/12/98, col 223 (FCO secondees); 21/4/99, col 546 (DETR secondees); 14/12/98, col 333 (Scottish Office secondees); and 14/12/98, col 323 (MOD secondees)
- Several of which are on the Internet sites of the firms which employ them.
- The accountancy firm PKF says on its web site: "Through the secondment of key staff to HM Treasury and first-hand experience of advising on the introduction of RAB (resource accounting and budgeting) in a number of government departments and other public bodies, we have built up a strong team in this field". www.pkf.co.uk/main/public.html. A current PKF secondee, Nick Buxton, is amongst those who have agreed to their identities being released.
- Annex 8, paragraphs 1 and 11
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