IN THE FIRST-TIER TRIBUNAL Case No. EA/2014/0054
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
ON APPEAL FROM:
The Information Commissioner’s
Decision Notice No: FS50513117
Dated: 17 February 2014
Appellant: King’s College London
First Respondent: The Information Commissioner
Date of hearing: 21 and 22 July 2014 at Field House
Date of decision: 30 September 2014
Date of Promulgation: 2 October 2014
Before
Ms Anisa Dhanji
Judge
and
Ms Rosalind Tatam
Professor Darryl Stephenson
Panel Members
Representation
For the Appellant: Mr Timothy Pitt-Payne Q.C., Counsel
For the Respondent: Ms Anneliese Blackwood, Counsel
Subject matter
FOIA section 40(2) - whether disclosure of personal data would breach the first
data protection principle
FOIA section 43(2) - whether disclosure would be likely to prejudice the
commercial interests of the public authority
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Case Law
Common Services Agency v Scottish Information Commissioner [2008] 1 WLR
1550
Corporate Officer of the House of Commons v IC and Norman Baker MP [2011] 1
Info LR 935
Corporate Officer of the House of Commons v IC & Others [2008] EWHC 1084
Farrand v Information Commissioner and the London Fire and Emergency
Planning Authority [2014] UKUT 0310 (AAC)
Guardian Newspapers Ltd and Heather Brook v Information Commissioner and
BBC (EA/2006/0011 and EA/2006/0013)
Hogan v Oxford City Council and Information Commissioner (EA/2005/0026 and
EA/2005/0030
Johnson v Medical Defence Union [2007] EWCA Civ 262
Jonathan Browning v Information Commissioner and Department for Business,
Innovation and Skills [2014] EWCA Civ.105C
Rechnungshof and Others v Osterreichischer Rundfunk and Others [2003] 3 CMLR
10
Robert Evans v Information Commissioner and Ministry of Defence (EA/2006/0064)
South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55
Surrey Heath Borough council v The Information Commissioner and John Morley
[2014] UKUT 0339 (AAC)
Other Authorities
Article 29 Data Protection Working Party, Opinion 06/2014 on the notion of
legitimate interests of the data controller under Article 7 of the Directive 95/46/EC
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IN THE FIRST-TIER TRIBUNAL Case No. EA/2014/0054
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
DECISION
The Tribunal dismisses the appeal and upholds the Decision Notice dated 17
February 2014 in relation to the requested information as it concerns:
(i) the Public Authority’s non-academic staff who are on the Principal’s
Central Team; and
(ii) the two members of the Public Authority’s non-academic staff who are
not on the Principal’s Central Team, and in relation to whom the Public
Authority withdrew its reliance on the exemption in section 40(2) of the
Freedom of Information Act 2000.
The Tribunal allows the appeal in relation to the requested information as it
concerns the Public Authority’s:
(i) academic staff (whether or not on the Principal’s Central Team); and
(ii) its non-academic staff who are not on the Principal’s Central Team
(other than the two members of staff referred to above),
and substitutes the Decision Notice that follows.
Signed
Anisa Dhanji
Judge
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IN THE FIRST-TIER TRIBUNAL Case No. EA/2014/0054
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
SUBSTITUTED DECISION NOTICE
Dated: 30 September 2014
Public Authority: King’s College London
Address of Public Authority: Room G37, James Clerk Maxwell Building, 57
Waterloo Rd, London SE1 8WA
Name of complainant: Mr Adalbert Lubicz
The following Decision Notice is substituted in place of the Commissioner’s
Decision Notice dated 17 February 2014.
The exemption in section 43(2) of the Freedom of Information Act 2000 is engaged
in relation to the requested information as it concerns the Public Authority’s
academic staff. The Public Authority is not required, therefore, to disclose this
information.
The exemption in section 40(2) of the Freedom of Information Act 2000 is engaged
in relation to the requested information as it concerns the Public Authority’s non -
academic staff who are not on the Principal’s Central Team, (except for the two
individuals in relation to whom the Public Authority withdrew its reliance on that
exemption). The Public Authority is not required, therefore, to disclose this
information.
Except as set out above, the Commissioner’s Decision Notice shall remain in
effect.
Signed
Anisa Dhanji
Judge
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IN THE FIRST-TIER TRIBUNAL Case No. EA/2014/0054
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
REASONS FOR DECISION
Introduction
1. This is an appeal by King’s College London (the “College”), against a
Decision Notice issued by the Information Commissioner (the
“Commissioner”), on 17 February 2014.
2. On 15 June 2013, Mr Adalbert Lubicz (the “Requester”), made a request,
under the Freedom of Information Act 2000 (“FOIA”), for information as to
the job titles of those employees of the College earning over £100,000. The
College refused the request relying on the exemptions in FOIA. The
Requester complained to the Commissioner who issued a Decision Notice
requiring the College to disclose the information.
3. The College has now appealed to the First-tier Tribunal challenging the
Commissioner’s decision.
4. During the course of the appeal, the Commissioner conceded that the
requested information as it relates to the College’s academic staff, comes
within the exemptions in FOIA and does not have to be disclosed.
Therefore, this determination only concerns the requested information as it
relates to the College’s non-academic staff earning more than £100,000 per
annum as at the date of the request (the “Disputed Information”).
The Request for Information and the Refusal
5. The request as initially made was for information about the job titles of all
those employees of the College who are paid over £100,000. Initially, the
Requester asked for the information in relation to salary bands of £5,000,
but later confirmed that he was content for the information to be provided in
salary bands of £10,000.
6. The College provided this information in relation to generic job titles (eg
“Professor”), but refused to provide the specific job titles on the basis of the
exemption in section 43(2) of FOIA (prejudice to commercial interest).
7. The Requester asked for an internal review. On 28 August 2013, the
College informed him that having conducted an internal review, it was
maintaining its decision.
8. The Requester complained to the Commissioner under section 50 of FOIA.
The Commissioner conducted inquiries, during the course of which the
College said that in addition to section 43(2), it was also relying on the
exemption in section 40(2) (personal data).
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9. The College has also clarified that in relation to section 43(2), its position is
not that disclosure “would” prejudice its commercial interests, but that it
“would be likely to” prejudice such interests.
The Commissioner’s Findings
10. The Commissioner considered that neither of the exemptions relied upon
was engaged, and required the College to disclose the requested
information.
11. As regards the exemption in section 40(2), the Commissioner accepted that
the information was the personal data of the employees concerned.
However, he considered that disclosure would be fair and would not breach
the first data protection principle as set out in Schedule 1 to the Data
Protection Act 1998 (“DPA”). Having reached this decision, he considered
that it was not necessary for him to go to assess whether any of the
conditions in Schedule 2 would be met. The Commissioner has now
acknowledged that in fact, he should have gone on to consider the Schedule
2 conditions, and has said that he considers that condition 6 of Schedule 2
would be met.
12. As regards the exemption in section 43(2), the Commissioner accepted that
the College had commercial interests that it was entitled to protect and that
there was a causal connection between the potential disclosure of the
information and the prejudice to its commercial interest. However, he
concluded that the College had not provided sufficient evidence to establish
that the likelihood of prejudice was more than just a hypothetical possibility.
Having decided that the exemption was not engaged, the Commissioner did
not go on to consider the application of the public interest test in relation to
this exemption.
The Appeal to the Tribunal
13. The Appellant has appealed to the Tribunal against the Decision Notice.
The scope of the Tribunal’s jurisdiction in dealing with an appeal from a
Decision Notice is set out in section 58(1) of FOIA. If the Tribunal considers
that the Decision Notice is not in accordance with the law, or to the extent
that it involved an exercise of discretion by the Commissioner, he ought to
have exercised the discretion differently, the Tribunal must allow the appeal
or substitute such other Notice as could have been served by the
Commissioner. Otherwise, the Tribunal must dismiss the appeal.
14. Section 58(2) confirms that on an appeal, the Tribunal may review any
finding of fact on which the Notice is based. In other words, the Tribunal may
make different findings of fact from those made by the Commissioner, and
indeed, as in this case, the Tribunal will often receive evidence that was not
before the Commissioner
15. An oral hearing took place over two days. Some parts of the hearing took
place in closed sessions, although these were very short and strictly limited
to the details of the Disputed Information. Since the Commissioner had
already had sight of the Disputed Information, and since there were no
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members of the public present, the closed sessions did not give rise to the
kinds of issues recently addressed by the Court of Appeal in Browning, in
that nobody present was excluded. We will not refer, in this determination to
the evidence in those closed sessions, nor do we consider it necessary, in
order to properly explain our reasons, to refer to the Disputed Information or
evidence about it in any detail in this determination.
16. The parties lodged two agreed bundles comprising some 462 pages, in
addition to Skeleton Arguments. Supplementary material was lodged at the
hearing. We have also been provided with the Disputed Information. We
have considered all the material before us, and will refer to it as needed, but
will not attempt to refer to all of it, nor to every turn of argument.
Issues
17. The appeal has become narrower in scope than had first been envisaged.
The request had been for information relating to both academic and non-
academic staff. As at the date of the request, of the 125 staff earning more
than £100,000 per annum, only 15 were non-academic staff. Adopting the
language used by the parties at the hearing we will refer to them as the
Professional Services staff (“PSS”).
18. The Commissioner’s Decision Notice applied to all 125 staff without
distinguishing between the academic staff and PSS. However, as already
noted, prior to the hearing, the Commissioner accepted that the College had
now provided sufficient evidence that there would be a real and significant
risk of prejudice to its commercial interests if the information relating to its
academic staff were to be disclosed. The Commissioner also accepted, in
relation to the academic staff, that the public interest in maintaining the
exemption, outweighed the public interest in disclosure of the information. In
effect, the Commissioner accepted that the exemption in section 43(2) was
engaged in relation to the academic staff (albeit that he has stressed that his
position reflects the facts of this case and does not mean that he considers
salary details of senior academic staff are always exempt from disclosure).
19. For the purpose of this appeal, what is now in issue, therefore, is only the
information in relation to the 15 PSS earning over £100,000. Both parties
have made it clear that they do not seek to draw any distinction between the
15 PSS concerned, except to the extent that there may be a case for
reaching a different decision in relation to the PSS who form part of the
senior management team, from those who do not. Later in the hearing,
because of the evidence referred to at paragraph 62 below, the College said
that it was now not relying on the exemption in section 40(2) in respect of
two members of the PSS.
20. The issues to be decided in this appeal are as follows:
a. Is the Disputed Information exempt under section 40(2)? It is
accepted that individuals can be identified from their job titles and
therefore, that the Disputed Information is personal data. The only
issue is whether disclosure would breach any of the data protection
principles.
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If the Disputed Information is exempt under section 40(2), then that
determines the appeal. If it is not, or to the extent it is not, then we must
go on to consider (b) below.
b. Is the Disputed Information exempt under section 43(2) on the basis
that disclosure would be likely to prejudice the commercial interests
of the College? If so, does the public interest in disclosure outweigh
the public interest in maintaining the exemption?
Witness Evidence
21. The College had intended to call 6 witnesses to give evidence at the
hearing and each had lodged a detailed witness statement. Much of their
evidence concerned the potential disclosure of the information relating to
the College’s academic staff. Once the Commissioner accepted that this
information was exempt, they said that two of the witnesses (Professors
Karen Steel and Adrian Hayday), would no longer be called to give
evidence.
22. We heard evidence from the remaining four witnesses, namely:
Sir Robert Lechler
Mr Brent Dempster
Ms Nicola Dandridge
Mr Stephen Large
23. Since much of their evidence as set out in their witness statements was
also no longer relevant, we gave leave for those aspects that were now
relevant, to be addressed in more detail.
24. We also heard evidence from Mr Peter Garrod who it was not anticipated
would give evidence and therefore, had not prepared a witness statement.
25. We have summarised below the evidence given by the witnesses in their
statements and at the hearing. We are grateful for the assistance they have
provided to the Tribunal.
Sir Robert Lechler
26. Sir Robert Lechler is the Vice Principal (Health) at the College, a position he
has held since 2005. He has overall responsibility for the 5 health schools at
the College. Each school has a Dean who reports to him. He also has a
corporate role within the College and is on the senior management team.
27. He has only had limited involvement with the recruitment of PSS. He had
some involvement with the recruitment of a Chief Operations Officer for the
Health Schools, a few months ago. For that role, the College used a
combination of a search process and advertisements. In order to cast the
net reasonably wide, they did not specify the salary. The salary for the
person appointed was determined on the basis of his past remuneration.
The salary was not disclosed internally or externally. The candidate had a
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background in the private and charitable sectors. He does not recall if the
search extended outside the UK, but the focus would have been the UK.
Mr Brent Dempster
28. Mr Brent Dempster is the College’s Director of Human Resources. He has
made two witness statements, the first dated 30 June 2014, and the second
dated, 17 July 2014. The second deals more specifically with the position of
the PSS.
29. He says that the PSS have a significant impact on the student experience,
which in turn affects the ability of the College to attract high-quality and high-
calibre students. They are responsible for the whole infrastructure of the
College. Leading institutions require not just leading academics, but also
leading administrators. The only difference in real terms between the
position of academics and PSS is that the latter do not have an apparent or
obvious link to the recruitment of students and to obtaining research grants.
However, PSS are essential, and without these individual “cogs”, the
operative wheel would not necessarily stop turning, but would significantly
slow in pace and this would have a real impact on the College’s
performance and efficiency. The impact depends on the individual
concerned. Fund raising and philanthropy are particularly important
functions performed by PSS. Loss of a PSS in these areas would be
significantly detrimental to the College
30. At the hearing, Mr Dempster said that impact of PSS on the student
experience is equivalent though different to that of the academic staff. He
accepted, however, that the identity of the person undertaking a PSS role is
usually not important, provided they have the necessary skills and
qualifications, in contrast to academic staff who may be well known names
and capable of attracting students and research funds because of their
reputation. It was put to him that if a senior member of the academic staff
were to leave, it may be harder to keep certain research going, for example,
but that the impact was likely to be quite different if, for example, a senior
member of the IT team were to leave. He said that would depend on how
quickly such a person could be replaced. He says that it can often take 6 -
12 months to recruit staff, but accepted that that depended not just on
identifying and recruiting the candidate, but also on their notice period. He
acknowledged, however, that in contrast to recent recruitment exercises for
senior member of the academic staff which cost the College £75,000 to
£100,000, that is not the level of investment the College has ever made in
recruiting a member of the PSS. However, he says that this does not mean
that the College would not be prepared to do so.
31. He says that the recruitment of high-calibre, experienced PSS is a complex
process which generally requires facilitation by head hunters. This highly
competitive recruitment market is not limited to higher education institutions
in the UK. A top performing PSS could equally apply his skills in a
commercial/corporate setting. As such, the College competes with private
sector entities which are able to lure potential employees with the prospect
of world class resources. Head hunters have to work extremely hard to
convince suitable candidates that joining the College is a worthwhile
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opportunity. He says that the market for high performing PSS is truly
international. For example, in a recent recruitment exercise involving a high
level PSS, the College was unable to locate suitable candidates in the UK
and needed to consider candidates from an international pool. The difficulty
in recruiting high quality PSS means that the loss of such a staff member
has an enormous impact on the College. Were information about salaries of
these key members of PSS to be disclosed to the world at large, it would
make it significantly easier for other entities, across a range of sectors, to try
to poach them.
32. He confirmed that since he has been in his post, of the 50 or so members of
the PSS who have been recruited, only one has been recruited from
overseas. He also acknowledged that most people are realistic and
understand that the College is unlikely to offer the same salary as the private
sector. However, he says that the timing of salary discussions is important. It
is important to build the relationship first and to convince a candidate of the
attractions of the role, before the salary is discussed. If salaries were
published, this opportunity would be lost.
33. As to whether, in recruiting PSS, the College has tended to poach from
other universities, he says that they have tended to hire from the private
sector at a senior level because the expertise that they are seeking is more
likely to be found there. As to whether other universities have poached from
the College, he says that they tend to lose people to institutions outside the
higher education sector, rather than to other universities.
34. Salaries of senior staff, whether academic or PSS, have not previously been
published, except that the College’s annual accounts provide a breakdown
of the salaries of the number of staff who receive over £100,000. However, it
is not possible, from this data, to identify the individuals concerned or the
specific positions which command these salaries. This method of publishing
anonymised data on senior staff salaries is the norm amongst all the Russell
Group Universities, which represents 24 leading UK universities.
35. He says that disclosure of the Disputed Information would have a significant
impact on the College’s ability to recruit and retain PSS. Employees could
use the salary information to speculate as to whether they are overpaid or
underpaid in relation to those they consider have a similar level of expertise,
within the College and in other universities. Also, the market in which the
College operates is international. Private institutions in the USA from which
the College has recruited staff in the past, do not disclose salary information,
and disclosure would serve as a barrier in attracting staff who would not
wish their salaries to be disclosed. In order for a market to operate fairly, all
the players must be subject to the same rules. He says that to his
knowledge, there is no precedent for any institution to be required to
disclose this kind of information.
36. He expects that disclosure of salaries will also create an upward pressure
on salaries, as has happened with Vice Chancellors, whose salaries are
published. The publication of their salaries allows universities to determine
exactly how much they need to offer someone in order to poach them when
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a vacancy arises. He envisages a similar situation occurring if salaries of
other staff are disclosed.
37. As to how salaries are set if the College does not know what equivalent
positions are paid in other universities, he says that they are set by
reference to the candidates’ current salary. He says that he has no idea at
all what his own counterparts are paid in other universities. He confirmed
that to his knowledge, the College has not lost any members of staff
specifically because of salary issues.
38. He also says that the PSS would not expect their salaries to be disclosed.
He quotes, at paragraph 41 of his first witness statement, from a comment
made by an individual whose salary would fall to be disclosed if the
Commissioner’s decision is upheld. That individual says that his salary was
not stated in the candidate brief for his role, and that in negotiations,
correspondence relating to his salary was headed “private and confidential”.
Also his salary slip comes in a sealed envelope. He therefore believes that
his salary is confidential information and is to be treated that way. Disclosure
of his salary would affect his ability to undertake his role in a satisfactory
manner. His role requires him to work across many different sectors to form
collaborations and to develop strong working relationships with colleagues,
across the College and contacts across the cultural sector. If his salary is
disclosed, it could damage the relationships he has built up. His role is very
unique, and people who do not understand the importance to the College of
the duties he undertakes, including colleagues within the College, might
question the value the College places on it. Disclosure of his salary could
damage relationships between himself and his staff, and it would also cause
him to reduce his public profile, and to limit, for instance, his use of social
media due to concerns about harassment and risks caused by disclosure.
He says this would be very negative as profile is a key part of his role. He
would also be concerned if his salary were to be disclosed to his friends.
Furthermore, disclosure would likely have an impact on his future prospects
as organisations may decide not to approach him on the grounds that
financially, he is “out of their league”. Disclosure would lead him to consider
moving into the private sector, provided, however, the role was equally
interesting and had an equivalent salary.
39. Mr Dempster sets out, in his second witness statement, comments made by
4 further PSS in response to a number of questions they were asked in
relation to the impact that disclosure of their salaries would have on them.
The first is quoted as saying that he had understood that information on his
salary would be kept confidential. He would strongly object to the disclosure.
He has no wish for people outside the College to know his salary. He would
regard this as a breach of trust by the College. His sector is highly
competitive and it would spur him on to look for employment elsewhere. He
would not have taken up the position if, during the recruitment process, he
had been told that information about his salary would be made public. He
could easily work in the commercial or another sector where this information
is confidential.
40. The second is quoted as saying that he did not know, when he came to the
College, that what he earns might become public knowledge; otherwise he
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would not have taken the role. He has never previously been required to
disclose what he earns. He finds the prospect intimidating and unwelcome.
He would go and work in another sector where such intrusion is not routine.
41. The third says that his expectation when he joined the College was, and
remains, that his salary would be confidential. Were it to become public
knowledge, it would impair his ability to do his job because his salary would
be known and that of his staff would remain confidential. He says this would
make his role significantly more difficult. As somebody who took a significant
salary reduction to accept his current role, if his salary were to become
public, he would reconsider whether he wished to remain with the College.
He would regard disclosure to be a breach of personal trust by the College.
It would make it harder for those who leave the private sector for public
sector roles to regain their previous salary levels as private sector
organisations consider “cheap employees” as being insufficiently skilled or
capable. He had already declined to apply for roles at another body, on
account of its policy on salary disclosure. He would expect, in the event of
salary disclosure, to be the subject of unfair commentary in the press and
his children may be taunted by other children whose parents earn more or
less than he earns.
42. The fourth is quoted as saying that he always assumed that his salary would
be confidential and that disclosure would make for some tricky
conversations with colleagues and supporters. When negotiating his salary,
he was told that information about what others were paid, including his
predecessor, was confidential as was any subsequent deal that he made.
He works with donors, some of which have strong views about limiting the
salaries of public sector employees, and disclosure may reduce their
support.
43. Mr Dempster was asked about the Commissioner’s guidance headed
“Definition Document for Universities and Other Higher Education
Institutions” (the “Definition Document”) which deals, amongst other things,
with the disclosure of salaries of senior staff which is defined as meaning
staff earning over £100,000 per annum and on the senior management team
or equivalent level. The Definition Document says that such salaries should
be published in bands of £10,000. Mr Dempster says he is not familiar with
this document. As to whether that document should have informed the
expectations of the senior staff at the College, he says that to his knowledge
it has never been given to anyone and also, because salaries are not
published in the higher education sector, there is no such expectation. He is
unable to say whether the PSS whose views on possible disclosure of their
salaries as set out in his witness statements, are aware of this guidance.
44. As to whether press articles such as that appearing in the Guardian on
Monday, 3rd March 2014 (at page 299 of the bundle), shows that there is a
clear public interest in University salaries, he says he cannot comment. He
points out that that article deals with Vice Chancellor salaries only. As to why
such a debate is not healthy and why it should not be extended beyond the
salaries of Vice Chancellors, he says that the expectations are different. A
Vice Chancellor knows that his salary will be disclosed. As to whether the
position of the College is akin to that of the BBC which is also funded in part
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from the public purse, but where senior salaries are disclosed, he says again
that he cannot comment.
45. He also briefly explained that the composition of the Principal’s Central
Team (“PCT”) comprises 12 officers who support the Principal of the College
in discharging his role. Some of these officers are academic staff and some
are PSS. The PSS who sat on the PCT at the time of the request, comprised
the Vice Principal (Research and Innovation), Head of Administration and
College Secretary, the Director of Estates, the Director of External Relations,
the Director of Finance and the Director of Human Resources (i.e. himself).
At the time of the request, 6 of the 15 members of the PSS who are the
subject of this appeal, were on the PCT. The remaining 9 (including the 2
who do not object to their salary information being disclosed – see
paragraph 62), are not members of the PCT.
46. In a closed session, Mr Dempster was asked about the roles of the
individual members of the PSS, and in particular, whether their roles were
public facing or inward facing. He was able to answer the question in respect
of some, but not all members of the PSS in issue in this appeal.
Ms Dandridge
47. Ms Dandridge is the Chief Executive of Universities UK (“UUK”). This is a
membership organisation representing higher education institutions
throughout the United Kingdom and currently comprises 134 member
organisations.
48. She says the UK higher education sector is unique and multi-faceted. It is
not truly public sector, nor is it private. It is not just about education, but also
about research, business and industry engagement, economic regeneration,
community engagement, social mobility and much else. The higher
education sector plays an important role in the UK economy. Overall, the
higher education sector contributed £39.91 billion to the UK GDP in 2011-12
(equivalent to 2.8% of the overall GDP).
49. Universities are autonomous institutions with their own governing bodies.
Their funding comes from many sources. Overall, the portion of public
funding for universities has reduced substantially in recent years, meaning
that far more of their income has to be made up from private sources. In
2000 - 2001, 40% of income to institutions in the UK came from funding
body grants. That fell to 30% in 2011-12, and 24% in 2012-13.
50. For many institutions, the pursuit of research is a core activity. This may be
government funded or privately funded. Universities are also globally-facing
institutions and many benchmark their performance against international
competitors, not domestic institutions. UK institutions have great sensitivity
to international ranking, and there is an extremely competitive environment
at play.
51. The roles of PSS can encompass a wide range of areas, such as those who
oversee the operation of the infrastructure, and important support functions
like managing the estate, administration, admissions, student support,
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knowledge exchange and so on. The term “senior management” means
different things in different institutions, but broadly refers to those senior
staff who have responsibility for the direction of the whole institution. Staff
who sit on a university’s executive board include those whose background is
academic, as well as senior PSS.
52. The recruitment of senior PSS (for example Registrars and those
responsible for philanthropic advancements) is highly competitive and such
posts can be very difficult to fill. Candidates are not infrequently recruited
from industry and the institutions need to work hard to ensure that they are
not enticed back into industry. The ability to offer a competitive package is
essential. She says that such individuals will often have a profile in their own
right and the risk of them being poached by other institutions or by the
private sector would be increased if their salaries were disclosed. Disclosure
would also impact on the institutions’ ability to recruit people to these
essential roles. Whilst the recruitment market for PSS is traditionally UK
based, there are some areas, in particular, fund raising and philanthropy
where there is a shortage of exceptional candidates and the candidates may
be recruited internationally. She accepts, however, that she has not herself
been involved with the recruitment of any PSS.
53. As to whether the recruitment of PSS is not, in fact, as difficult or as
complicated as the recruitment of academic staff, she says that it depends
on the role. Some positions may be more competitive than others. However,
unlike the academic arena where a single member of academic staff may be
uniquely qualified for a role, based on expertise and reputation in his or her
field, that would be less likely to be the case with the PSS. Nevertheless,
while they will not be superstars, there are a few known individuals who can
name their package.
54. As to the risk of poaching if salaries are published, she was asked if the
effect would not be both ways? She says that the main problem is poaching
by international institutions and also, by the private sector. As to whether if
salaries of the PSS are disclosed, the College would be in a similar situation
to say, the BBC, she says that it feels different. Universities operate in a very
competitive environment.
55. She was asked whether, given that it is well known that academic
institutions in some countries pay more than in others, publication of
individual salaries would in fact make any real difference to recruitment or
retention issues. She accepted that its effect would be largely to exacerbate
the existing competitive environment. As to whether the publication of
salaries would have the positive effect of ensuring equal pay between the
genders, she accepted that was a fair observation and that inequality of pay
is an issue in the sector. It was also put to her that some of the concerns she
had expressed, may not be dissimilar to concerns expressed by those in
local government when senior salaries in that sector were to be disclosed.
She was asked whether what is really in issue is the fear of the unknown.
She says that the education sector is more volatile and more varied than the
local government sector.
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56. She is familiar with the Definition Document. The UUK was consulted and
had an opportunity to comment on the document in its draft form. She was
asked whether, because of the Definition Document, senior staff earning
over £100,000 would expect their salaries to be published. She says that
people seem to think, rightly or wrongly, that it is only anonymised salary
bands that will be disclosed. The Definition Document can be read that way.
She does not know if any university has asked the Commissioner to clarify
the point. The UUK has not. She is not aware of any university in this
country disclosing individual salaries of senior staff, apart from those of Vice
Chancellors.
Mr Peter Garrod
57. Mr Garrod is the Director of Governance and Legal Affairs Management at
the College, a position which he has held since 2009.
58. He is familiar with the Commissioner’s Definition Document. He also
confirmed that there is a link to the document on the College’s website. As to
why, given what is said in the Definition Document, the College does not
publish senior salaries, he says that the document is only guidance and
also, it is capable of being interpreted in more than one way. Furthermore,
the Commissioner does not require public authorities to publish information
which is exempt. As to why, if there was any ambiguity, was the issue was
not clarified with the Commissioner, he says that the College took a
conscious decision not to publish the salaries. He had discussed the issue
with his immediate supervisor and that is the decision they made. However,
the staff know that the College is subject to FOIA and they are aware,
therefore, of the possibility of salaries having to be published. He says there
would be a general awareness of that risk.
59. Mr Garrod says that the PCT is regarded as the College’s executive board
and makes all major decisions on behalf of the College. The term “PCT” is
used as shorthand for senior management. They are effectively non-
executive directors. He says that although the Principal decides who is on
the PCT, in his time, the membership has remained constant. Some
decisions have to be made by the College Council. The College Council is
the equivalent of a governing body for a school. Most members of the
College Council do not work full-time in the College.
60. He was asked about how responses from certain PSS as set out in Mr
Dempster’s statements, had been elicited. He said that once the focus of the
appeal was to be only the PSS, e mails were sent out by him to those
members of the PSS who could respond the same day. Of the 15 PSS that
would potentially be affected by disclosure, emails were sent to 8. Of the
others, 2 no longer work at the College, 1 had provided a response that went
into Mr Dempster’s original statement, 2 were at the hearing as witnesses,
and 2 are very senior staff who it was thought would not respond in time.
The questions sent by e mail were formulated by the College’s lawyers.
61. At the panel’s request, the email was produced and was worded as follows:
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As you may have seen from the Times Higher, the College is currently
appealing an FOI decision by the Information Commissioner relating to the
release of salary data on individual staff paid over £100k (in £10K bands). A
hearing of the First Tier Tribunal (Information Rights) is scheduled for
Monday.
In advance of that hearing we are attempting to gather additional evidence
relating to professional services staff who would be affected by the
disclosure. This is in response to an indication from the ICO that the ICO is
prepared to accept the College’s arguments in relation to academic staff
(who comprise the bulk of those affected) - i.e. the focus has shifted to
professional services staff.
We intend to submit a supplementary statement from Brent focussing
specifically on professional services staff. As part of that statement we would
like to include some statements from professional services staff who would
be affected by the disclosure on their expectations about the confidentiality
of their salary data and how the disclosure might affect them personally. We
need this by COB today if possible. You will not be identified in the
information submitted to the Tribunal - your contribution will be anonymised
in Brent’s statement.
The lawyers have prepared the following questions, if possible, I would be
grateful if you could consider these and get back to me and Brent by 5 p.m.
today - apologies for the short notice.
Best, Peter
Key questions:
In broad terms what expectations do you have regarding the
confidentiality of information about your salary?
Would you object to details of your salary being disclosed publicly - if
so, why?
How would you react to the disputed information being made public?
Wider questions:
Have you been told anything by the College (during the recruitment
process or since) that would lead you to have certain expectations
about the confidentiality of this information - if so, what?
If during the recruitment process you had been told that information
about your salary would or may be made public knowledge, how
would this have affected your decision to take up a position at the
College?
What would the impact on you be of this information being made
public? Do you have any concerns in this regard?
If information of this kind was routinely made public by universities in
the UK, would you consider instead working in a country where this
was not the case?
Generally, and to the extent not already covered, what is your view on
the potential disclosure of the disputed information?
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62. Mr Garrod said, in response to the panel’s questions, that 2 of the
individuals who responded said that they had no issue with their salaries
being disclosed. As to why these responses were not set out in Mr
Dempster’s statements or elsewhere in the College’s evidence, Mr Garrod
said that in one case the response was by telephone, and the other was a
brief email.
Mr Stephen Large
63. He is the Director of Finance. He has overall responsibility for planning the
College’s finances, providing financial leadership, and managing the finance
function.
64. At any time, the College has more than 25,000 registered students, of which
more than 10,000 are post-graduate students from nearly 140 countries. The
College has more than 6,500 employees.
65. The College is a member of the Russell Group, and is ranked as one of the
top 20 universities in the world. It has an annual income in excess of
£600,000,000. It competes successfully with other higher education
institutions, both in the UK and overseas. This ultimately comes down to the
quality of the people employed.
66. Universities are not public sector organisations in a financial or autonomous
sense, even though they receive a large amount of public funding. Unlike
public sector organisations, universities decide their own strategies.
67. He confirmed that the PCT is the College’s senior management team. Its
composition is reasonably stable. Its formal role is to advise the President,
but internally, it functions as a Cabinet. It meets for 3 hours every week.
68. The College has approximately 3,000 PSS. For most positions, recruitment
is straightforward, but in some areas, such as finance and IT, it can be
difficult, even at the lower levels. At the senior level, there is very little
difference in the difficulties in recruiting PSS and star academics. It was put
to him that this is not what he had said in his witness statement. He says
that in that case, he had not worded his statement correctly, because the
challenges can be equivalent. He accepted, however, that for many
positions, including for example, the Director of Human Resources, given
that London is a huge financial centre, there would be a very large pool of
potential candidates that cannot be equivalent to the pool for recruiting a
well-known academic for the College’s law faculty, for example. He agreed
that for many PSS positions, there is a larger pool, but says that for some
positions involving philanthropy in particular, there are very few qualified
candidates.
69. He gave the example of the position of the Director of Real Estate which he
says is a position the College recently created. The candidate for that
particular position was appointed through a personal recommendation and
head hunters were not briefed. It was put to him that nothing in his evidence
suggested that it was actually difficult to recruit for that post.
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70. He says that if salaries are published, the College will need to have difficult
conversations with a number of PSS. That is his primary concern. Salary
differences would have to be explained and managed and in some cases, it
may mean giving certain staff a pay rise. It may also affect team dynamics.
The real issues may arise not with the individuals whose salaries are
disclosed, but those one level down. He does not want people to be
distracted by differences in pay.
71. Mr Large explained that Vice Chancellor salaries have been published since
1993/1994. He believes it came about as the sector’s response to the
Cadbury Report. As to why there has been a recent inflation in Vice
Chancellors’ salaries given that their salaries have been published for some
time, he says that in the last decade, the sector has changed dramatically. It
is much more competitive and the sector has responded in different ways.
More Vice Chancellors are being appointed from overseas. He accepted that
the salary inflation was not as a result of the salaries being published.
72. In a closed session, Mr Large gave brief evidence about the roles of the
individual PSS whose salaries are in issue in this appeal, in addition to
those individuals already dealt with by Mr Dempster in his oral evidence.
Findings and Reasons
Statutory Framework
73. Under section 1 of FOIA, any person who makes a request for information to
a public authority is entitled to be informed if the public authority holds that
information, and if it does, to be provided with that information.
74. The duty on a public authority to provide the information requested does not
arise if the information sought is exempt under Part II of FOIA. The
exemptions under Part II are either qualified exemptions or absolute
exemptions. Information that is subject to a qualified exemption is only
exempt from disclosure if, in all the circumstances of the case, the public
interest in maintaining the exemption outweighs the public interest in
disclosing the information. Where, however, the information requested is
subject to an absolute exemption, then, as the term suggests, it is exempt
regardless of the public interest considerations.
75. In the present case, the public authority says that the Disputed Information
is exempt under sections 40(2) and 43(2) of FOIA. We will consider each in
turn.
Is the disputed information exempt under section 40(2) of FOIA?
76. Under section 40(2), personal data of third parties is exempt if disclosure
would breach any of the data protection principles set out in Part 1 of
Schedule 1 of the Data Protection Act 1998 (“DPA”). The exemption is
absolute.
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77. It is common ground between the parties that the Disputed Information
constitutes the personal data of the PSS. The question is whether disclosure
would breach any of the data protection principles.
78. As the case has been put, only the first data protection principle is relevant.
This provides that personal data shall be processed fairly and lawfully, and
in particular, shall not be processed unless at least one of the conditions in
Schedule 2 is met. The parties agree that the only relevant conditions in
Schedule 2 are condition (1) and 6(1).
79. Condition (1) applies if the data subject consents to the processing of his or
her data. Condition 6(1) provides as follows:
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.
80. As set out at paragraph 62 above, two of the PSS have indicated they do
not object to disclosure and for this reason, the College does not now seek
to rely on the exemption in section 40(2) in respect of them. As regards the
other PSS the key issues that arise from the first data protection principle,
and condition 6(1) are whether disclosure would be fair (there being no
suggestion that it would be unlawful), whether disclosure is necessary for
the purposes of a legitimate interest that is being pursued, and whether
disclosure is unwarranted by reason of prejudice to the rights and freedoms
or legitimate interests of the data subjects. We will consider each in turn,
although we would note here that the first and last of these considerations
are closely related.
Would disclosure be fair?
The College’s arguments
81. The College’s main argument for why disclosure would not be fair, rests on
the assertion that it would not have been in the reasonable expectation of
the individuals concerned, that their salary information would be disclosed.
82. The College also says that disclosure of the Disputed Information would
cause distress to the affected individuals, leaving them with a sense of
grievance that their employer had put their personal information into the
public domain when they did not expect this to happen, and would expose
the staff to the type of negative comments that have been made in relation
to the Vice-Chancellors’ pay, and that it would have particular adverse
effects on individuals working in controversial areas of research. Disclosure
would also interfere with the data subjects’ right to respect for private life
under Article 8(1) of the European Convention on Human Rights.
83. The College relies on the specific responses it has received from five PSS,
as regards the prospect of disclosure, as set out in Mr Dempster’s witness
statements. As already noted, the College now accepts, in view of the
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responses it received from 2 further PSS to the effect that they do not object
to disclosure, that disclosure in those two cases, would not be unfair. What
is in issue, therefore, is the disclosure in respect of 13 members of the PSS.
84. The College also says that the expectation that this information would not be
disclosed is reasonable, having regard to the fact that such information is
not generally disclosed in the higher education sector, and has not been
disclosed by the College in the past. It says that the Definition Document
does not mean that those concerned should have expected the information
to be disclosed. The document is only guidance and could quite reasonably
be interpreted as meaning that the information did not have to be disclosed if
it was regarded as being exempt information. There is also no evidence that
those affected were actually aware of the Definition Document.
The Commissioner’s arguments
85. The Commissioner says that disclosure would be fair. He says that anyone
who is paid from the public purse, should expect some information about
their salaries to be made public. He refers to his guidance on “Requests for
Personal Data about Public Authority Employees” to this effect. He accepts
that the College is in a different position from other public bodies, in that it is
reliant on both public and private funding. However, as it is partially reliant
upon public funding, the Commissioner says that there should be an
expectation by its staff that some information relating to salaries, particularly
for senior staff earning in excess of £100,000, will be made public.
86. He also refers to his Guidance on Requests for Personal Data about Public
Authority Employees, and reiterates the point made there, that anyone paid
from the public purse should expect some information about their salaries to
be public. The Disputed Information relates to the PSS’ professional roles,
these are people holding senior positions, they are often in public facing
roles and many of them represent the College to the outside world. He says
that increased seniority as represented by these high salary levels is
commensurate with increased responsibility, especially when the individuals
concerned are on the PCT and thereby involved making influential policy
and expenditure decisions.
87. The Commissioner also refers to the Definition Document which he says
makes it clear that salaries for “staff earning over £100,000 per annum and
on the Senior Management Team or equivalent level”, should be published.
He says that such staff should expect that details relating to their salaries
will be published. In light of the Definition Document, if they thought that their
salaries would not be disclosed, that was not a reasonable expectation.
Findings
88. When assessing fairness, the interests of the data subject as well as the
data user, and where relevant, the interests of the wider public, must be
taken into account in a balancing exercise. This wide approach to fairness is
endorsed by the observations of Arden LJ in Johnson v Medical Defence
Union at paragraph 141:
- 20 -
“Recital (28) [of Directive 95/46] states that "any processing of
personal data must be lawful and fair to the individuals concerned". I
do not consider that this excludes from consideration the interests of
the data user. Indeed the very word "fairness" suggests a balancing
of interests. In this case the interests to be taken into account would
be those of the data subject and the data user, and perhaps, in an
appropriate case, any other data subject affected by the operation in
question.”
89. The following passage in Corporate Officer of the House of Commons v
IC and Norman Baker MP at paragraph 28, also offers helpful guidance
about the balancing exercise to be undertaken:
“If A makes a request under FOIA for personal data about B, and the
disclosure of that personal data would breach any of the data
protection principles, then the information is exempt from disclosure
under the Act: this follows from section 40(2) read in conjunction with
section 40(3)(a)(i), or (when applicable) section 40(3)(b) which does
not a apply in these appeals. This is an absolute exemption - section
2(3)(f)(ii) FOIA. Hence the Tribunal is not required to consider
whether the public interest in maintaining the exemption outweighs
the public interest in disclosure under section 2(2). However… the
application of the data protection principles does involve striking a
balance between competing interests, similar to (though not identical
with) the balancing exercise that must be carried out in applying the
public interest test where a qualified exemption is being considered.”
90. This does not mean, however, that one starts with the scales evenly
balanced. The continued primacy of the DPA, notwithstanding freedom of
information legislation, and the high degree of protection it affords data
subjects has been strongly emphasised by Lord Hope in Common Services
Agency v Scottish Information Commissioner where he states (at
paragraph 7):
“In my opinion there is no presumption in favour of the release of
personal data under the general obligation that [FOIA] lays down. The
references which that Act makes to provisions of DPA 1998 must be
understood in the light of the legislative purpose of that Act …. The
guiding principle is the protection of the fundamental rights and
freedoms of persons, and in particular their right to privacy with
respect to the processing of personal data.”
Although that case concerned the provisions of the Freedom of Information
(Scotland) Act 2002, the principles apply equally in relation to FOIA.
91. As to the position where public officials are concerned and where the
purpose for which the data is processed arises through the performance of a
public function, the following passage in Corporate Officer of the House of
Commons offers helpful guidance:
“…when assessing the fair processing requirements under the DPA
… the consideration given to the interests of data subjects, who are
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public officials where data are processed for a public function, is no
longer first or paramount. Their interests are still important, but where
data subjects carry out public functions, hold elective office or spend
public funds they must have the expectation that their public actions
will be subject to greater scrutiny than would the case in respect of
their private lives. This principle still applies even where a few
aspects of their private lives are intertwined with their public lives but
where the vast majority of processing of personal data relates to the
data subject’s private life.” (paragraph 77):
92. As already noted, the College’s arguments in relation to fairness centre on
the question of the reasonable expectations of the data subjects. We have
evidence from 5 PSS to say that they did not expect this information to be
disclosed, and evidence from 2 PSS who say they do not object to
disclosure. We do not know the position of the others, but we are asked to
infer that the example of the 5 who do object to disclosure is representative
of the rest on the basis, inter alia, that they, too, would not have expected
their salaries to be disclosed because it has not been the practice of the
College, nor indeed the higher education sector, to do so.
93. First, we would express our concern that the e mail setting out the questions
sent by e mail to the PSS, the responses to which the College relies on, was
not put before the Tribunal until requested by the panel, and also that the
panel was not informed, until we specifically asked, that two of the PSS had
replied to say that they did not object to disclosure. Although we do not say
that the College had any intention to mislead, such matters require greater
care to ensure that they do not in fact mislead.
94. We also have some difficulty with the evidence of the 5 PSS who object to
disclosure. To the extent that they say that when they joined the College,
they were not told that this information would be disclosed, or indeed, were
told that it would not be disclosed, there is no suggestion that there was or is
any confidentiality provision in their contracts of employment. There is also
no evidence before us as to when all the individuals concerned were
employed, nor whether some may have joined at a more junior level,
progressing over time, without there having been any further discussion
about the confidentiality that would attach to their salaries. There has also
been no opportunity for their evidence to be tested so that they could be
asked, for example, what they knew about the Definition Document, how
they understood it to apply to them, and how their expectations might have
been informed by the on-going public debate about salaries of those entities
which are funded, or partly funded, by the public purse. These questions are
clearly relevant to their expectations, but are not matters which the e mail
questionnaire explored at all. It is also our view that a number of the
questions were decidedly leading. It may also fairly be said that the e mail
suggests that the sender was seeking comments supportive of the College’s
position. It was made clear in the text of the e mail preceding the questions,
that the responses were being sought to support the College’s case, and in
those circumstances, there must be a real possibility, that the responses
were given in terms intended to assist the College, and also that the
responses may have been coloured by the desire of those responding to be
helpful to the College’s objectives in relation to this appeal.
- 22 -
95. For these reasons, we do not attach as much weight to these responses as
the College would like us to, nor indeed, given the responses of the 2
individuals who we are told have said that they do not object to disclosure,
do we think it sensible to draw inferences about the position of those who
did not respond to the questions, or indeed who were not asked at all.
96. As an alternative argument, Mr Pitt-Payne acknowledged that if there was a
case for saying that those PSS earning more than £100,000 should expect
their salaries to be disclosed, that should apply only to those PSS who are
on the PCT, as distinct from those who are not. We agree that if there is to
be a dividing line (and we think there is), then that must be the line. The
evidence is that the PCT is, effectively, the executive body of the College. It
makes the major policy and expenditure decisions of the College. Individuals
are on the PCT because of the particular posts that they hold. It is clear to
us, from the evidence, that being on the PCT is a significant role. The PCT
meets for 3 hours every week and no doubt, also, these meetings involve
preparation and follow-up, and the discharge of such responsibilities as may
be assigned, meaning that a substantial portion of the time of those on the
PCT is committed to matters of operational or strategic importance to the
College as a whole, beyond their specific functional roles. These are all
senior individuals as reflected, not just by their salary level, but also by the
influence that being on the PCT affords.
97. We agree with the Commissioner that it is reasonable to expect that those
working at a senior level in an organisation receiving substantial public
funds, would be aware that information about their salaries may be subject
to greater public accountability and may have to be disclosed under FOIA.
Indeed, as Mr Garrod fairly acknowledged, it is likely that there would be that
general awareness. We also keep in mind that the Definition Document
which sets out the information which the Commissioner has publicly said he
expects will be published in respect of those on the Senior Management
Team “or equivalent”, is on the College’s website. We accept of course that
that document represents guidance and not the law, but it clearly puts down
a marker as to what may have to be disclosed under FOIA. For these
reasons, we consider that an assertion by PSS on the PCT who say that
they had no expectation of their salary being disclosed, cannot sensibly be
taken to support a finding that disclosure would not be fair.
98. Although this is not directly relevant to the issue of fairness, we would say
that we do not accept the interpretations variously proposed, that the
Definition Document can reasonably be read as meaning that the salary
information only needs to published in the anonymised way that it is
currently published by the College, nor that it can be taken to mean that that
information should only be published if to do so does not breach section
40(2). That is an entirely circular argument. The more credible interpretation
of the evidence we heard was that the College considered the Definition
Document, and decided not to follow it until and unless it was required to.
99. As regards the claim that disclosure of the Disputed Information would
cause the PSS affected to feel betrayed that their employer had put their
personal information into the public domain when they did not expect this to
- 23 -
happen, it is of course the case that the College will not have done so
voluntarily, and indeed has vigorously contested the Commissioner’s
Decision Notice requiring it to do so. The College also says that disclosure
would be unfair because it would expose the PSS to the type of negative
comments that have been made in relation to the Vice-Chancellors’ pay. We
consider that it is a logical consequence of such information being placed in
the public domain that there will be public scrutiny of the information and
potentially also, public comment. The fact that members of the public may
express opinions about how public funds are spent does not make
disclosure unfair. We consider it unlikely, in any event, that individual PSS
salaries will attract the same attention as those of Vice Chancellors, who,
given the higher profile of their positions, are likely to attract much greater
scrutiny.
100. The College also says that disclosure would be unfair because it would have
particular adverse effects on individuals working in controversial areas of
research. This assertion has not been properly explained, and we do not find
it likely, in any event, that the PSS would be closely involved with research.
101. In relation to the concerns about the consequences of their salaries being
known to their staff and others, again, the assertions are largely just that and
have not been properly supported or tested. We accept that the prospect of
disclosure may cause apprehension and that disclosure itself may cause
discomfort, and that there may be a period of adjustment. Change is often
uncomfortable, and in this regard, the situation for the College may be no
different from that of other publicly funded entities when salary information is
disclosed. In our view, this does not make disclosure unfair.
102. However, in our view, the fairness of disclosure is largely dependent on the
position occupied by the PSS concerned, and we are not satisfied that
disclosure would be fair in respect of those who are not on the PCT. They
fall outside the scope of the Definition Document and this is relevant to an
assessment of their reasonable expectation, as is the fact that they are not
part of the College’s executive body. We do not say that disclosure would
always be unfair in respect of those not on the PCT. However, except in
relation to the distinction between those on the PCT and those not on the
PCT, we were not urged to draw a distinction, nor indeed was evidence put
forward to allow a meaningful distinction to be drawn, between the individual
PSS who are not on the PCT, based on their specific roles. Although there
was some evidence of the outward facing or inward facing aspects of the
roles of those individuals, it is not at all evident to us that those distinctions
are clear or meaningful, nor that an inward facing role in an organisation like
the College with its substantial body of students and staff, is less significant
in relation to the considerations under discussion, than a role that might be
described as being outward facing, but which, in reality, may be more limited
in scope and influence.
103. For all these reasons, we find that disclosure of the Disputed Information
would be fair in respect of the PSS who are on the PCT, but not in respect of
those who are not.
Whether disclosure is necessary for a legitimate interest?
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The Commissioner’s arguments
104. The Commissioner says that there is a clear and strong public interest in
understanding which specific publicly funded jobs attract very high salaries,
and in particular salaries in excess of £100,000 per annum. He also says
that increasing access to information on senior staff salaries has an
important function in advancing transparency in how public funds are used.
105. The Commissioner further says that in the context of on going public debate
about tuition fees and university funding more generally, there is a clear
public interest in people understanding how universities choose to spend the
money they receive from the public purse. The fact that details of salaries of
high earning individuals are relevant to the public debate on the subject of
university funding and resource allocation, is evidenced by the fact that
many of the leading UK newspapers, including the Guardian, the
Independent and the Times, reported on the Vice-Chancellors’ salaries, as
the articles at pages 299 - 327 of the open bundle show.
106. He accepts that the information published by the College, in its annual
financial statements, goes some way to meeting that legitimate public
interest. However, he says that because the individuals concerned all earn
in excess of £100,000 and occupy senior positions, many of which are public
facing and/or involve responsibility for influential policy and expenditure
decisions, it is reasonable for the College to disclose the individual job titles,
departments, and salaries in bands of £10,000. The information that is
already in the public domain is presented in high level, aggregate form which
prevents the public being able to determine how the College chooses to
prioritise the allocation of its resources between academic and non-
academic staff, and between different types of non-academic staff. The less
detailed information that is available in the public domain, makes it more
difficult to draw useful conclusions about the allocation of resources in
relation to non-academic staff.
The College’s arguments
107. The College accepts the public interest arguments made by the
Commissioner, but says that this is adequately met by the information it
published in its annual financial statements, which lists the number of staff
earning over £100,000, in £10,000 bands.
108. The College also says that disclosure of the Disputed Information is not
necessary. In terms of informing any public debate about how the College
spends its money, disclosure will add nothing or little of value to the
information already made public by the College.
109. Although the published information would not allow the public to distinguish
between the salaries paid by the College to its academic staff, as opposed
to its PSS, the College says that that distinction would not inform public
debate about how the College’s resources are allocated. There may well be
a debate about the upward trend of salaries, but that debate can be properly
informed by information that is already in the public domain.
- 25 -
Findings
110. There is no dispute that disclosure would be for the purposes of a legitimate
interest, namely an interest on the part of the public about salaries funded by
the public purse generally, and university salaries in particular. There is no
reason to consider that the public interest in university salaries, is limited to
the salaries of Vice-Chancellors. At a time when the subject of tuition fees,
and the quality of the education offered by different universities is very rarely
out of the news, and when all aspects of public expenditure is closely
scrutinised, we consider there is a legitimate public interest in the way in
which the College, which receives a substantial amount of public funds
allocates its resources. That, as we have already said, is not in dispute. For
completeness we would say that it has not been argued that the legitimate
interest is lessened by the fact that the College is not fully funded by public
funds. It is clear that the public funding it receives is substantial, running into
well over 100 million pounds every year. What is in dispute is whether
disclosure is necessary for the purposes of that legitimate interest.
111. “Necessary”, in this context, has been held to reflect the meaning attributed
to it by the European Court of Human Rights when justifying an interference
with a recognised right, namely that there should be a pressing social need
and that interference must be both proportionate as to the means, and fairly
balanced as to ends. See Corporate Officer of the House of Commons,
paragraph 43.
112. More recently, in Farrand, the Upper Tribunal stressed (at paragraphs 26),
that “necessary” does not mean essential or indispensable. That is too strict
a test. Rather, the word connotes a degree of importance or urgency that is
lower than absolute necessity, but greater than a mere desire or wish.
113. In Farrand, the requester had sought information about a fire that had
occurred in a basement flat in the building where he lived. He had asked for
and was provided with the fire investigation reports, but some of the text and
most of the photographs were redacted on the grounds that they were
personal data. The Requester said that he wanted to see the redacted
material in order to discover the cause of the fire, with a view to preventing it
from happening again. Upper Tribunal Judge Jacobs considered that it was
not necessary, for the Requester’s interest in identifying the cause of the
fire, to see the redacted material. The evidence was that the cause of the
fire had never been established, although the most likely cause was a naked
flame. The fire investigator’s description and analysis are all that was
necessary to understand, as far as possible, the cause of the fire. The
information that had been disclosed satisfied the Requester’s proper interest
and disclosure of the redacted material was not necessary.
114. In the present case, to understand the spending decisions of the College as
regards salaries, in particular, does require knowing more than just how
many employees are paid over £100,000 (in bands of £10,000). To
understand its spending decisions also means understanding how the salary
paid for one role compares with what is paid for another. This is informed by
knowing, for example, whether a salary of £200,000 appearing in the
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College’s published accounts, is in respect of the head of fund-raising, or the
head of IT. If that is £50,000 more than is paid to the Dean of a health
school, what does that indicate about the College’s priorities as compared to
the priorities of other competitor universities, and are those are priorities that
the public agrees with? We consider that there is a legitimate interest in
such questions and that disclosure is necessary for that interest.
Would disclosure be unwarranted by reason of prejudice to the rights and freedoms
or legitimate interests of the data subjects?
115. This issue is closely related to the question of fairness and the parties have
not raised any points additional to what they had already raised in relation to
fairness. We therefore adopt what we have said, above, in relation to
fairness, and we find, for the same reasons as set out above, that in the
case of the PSS who are on the PCT, disclosure is not unwarranted by
reason of prejudice to the rights and freedoms or legitimate interests of the
data subjects.
Findings
116. For all these reasons, we find that disclosure of the Disputed Information in
relation to those members of the PSS who are on the PCT, is not exempt
under section 40(2) of FOIA.
Is the disputed information exempt under section 43(2) of FOIA?
117. The College also relies on the exemption in section 43(2). Since the
Commissioner has accepted that the salary information of academic staff is
exempt under section 40(2), and since we have found that information in
relation to those members of the PSS who are not on the PCT, is exempt
under section 40(2) of FOIA, the question of whether section 43(2) is
engaged is now relevant only to the 6 PSS who are on the PCT and the 2
referred to in paragraph 62 who are not.
118. Section 43(2) states that information is exempt if disclosure would, or would
be likely to prejudice the commercial interests of any person, including the
public authority holding it. By virtue of section 2, the exemption is only
engaged if in all the circumstances of the case, the public interest in
maintaining the exemption outweighs the public interest in disclosure. As
already noted, the College has said that it relies on the lower threshold test,
namely that disclosure “would be likely to” prejudice its commercial interests
(rather than “would” prejudice its commercial interests).
The College’s arguments
119. The College says that there is a real and significant risk of prejudice to its
commercial interests if the Disputed Information is disclosed. It says that it
operates in a highly competitive environment which is different to that of
other public authorities (for example local or central government
departments), and that it competes nationally and internationally with other
universities for “talent”. Its success depends on being able to recruit high
calibre individuals, not just in the academic arena, but also for PSS roles.
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120. It says that if the Disputed Information were to be disclosed, it would
prejudice its commercial interests in several ways. First, it would increase
the cost of recruiting and retaining staff because, inter alia, competitor
universities or private sector organisations, would know what salary level
they would have to offer to lure people away.
121. Second, disclosure would impede salary negotiations by encouraging
candidates to seek higher salaries based on salaries paid for posts they
regard as being comparable.
122. Third, the College says it would lose PSS or fail to attract PSS who did not
wish to have information about their salaries disclosed. Although this might
not put the College at a competitive disadvantage, nationally, if other
institutions are also required to disclose that information, it would put them at
a competitive disadvantage internationally, because comparable institutions
in countries such as the USA and Australia, do not have to disclose such
information. They would also lose or fail to attract candidates from the
private sector.
123. In addition, the College says that disclosure would impact on a range of
other matters which would also prejudice its commercial interests. If the
information is disclosed, it would lead to ill-feelings between colleagues who
work together in teams and this would impact the effectiveness of those
teams. It would likely also lead to adverse publicity, as has been the case in
relation to Vice-Chancellors’ salaries, thereby damaging the College’s
reputation and standing in the market place. As well, it would also potentially
impact on the willingness of donors who may disagree with the College’s
spending priorities or who may be put off by adverse publicity about salaries.
The Commissioner’s arguments
124. The Commissioner accepts that the College has commercial interests that it
is entitled to protect, and he also accepts that there is a causal connection
between the potential disclosure of the Disputed Information, and the
claimed prejudice to its commercial interest. However, he does not accept
that the evidence shows that there is a real and significant risk of prejudice,
as opposed to a mere hypothetical possibility. He says that the position of
PSS is significantly different in this regard from the “superstars” of the
academic world in respect of which he accepts that recruitment and
retention is uniquely competitive. He says that in the case of PSS, there is a
bigger pool of individuals who can be recruited, and the evidence is that they
are usually recruited in the UK rather than internationally. He also says that
the evidence does not show that recruitment of PSS involves the same
challenges as recruiting academic staff.
125. The Commissioner says that if he is wrong about this, and there is, in fact, a
real and significant risk of prejudice as a result of disclosure of the Disputed
Information, the exemption is still not engaged because the public interest in
disclosure of the information outweighs the public interest in maintaining the
exemption. He reiterates the public interest considerations referred to in
relation to section 40(2), as set out above although recognising that the
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balancing exercise in the case of a qualified exemption like section 43(2), is
different from that required by section 40(2).
Findings
126. As already noted, the question of whether section 43(2) is engaged is now
relevant only to 8 PSS. The question is whether disclosure of the information
in relation to these PSS, would be likely to prejudice the commercial
interests of the College, and if so, whether the public interest in maintaining
the exemption outweighs the public interest in disclosure. Again, the College
has not put its case on the basis that there is a distinction to be drawn
between one member of the PSS and another. Its position is that disclosure
of this information in relation to this category of employees engages the
exemption in section 43(2), and therefore we have not considered the
individual position of those concerned.
127. We recognise that the College is one of the leading universities in the UK,
and we accept that as emphasised by the witness evidence, the College
operates in a competitive environment, both nationally and internationally.
We also accept that like any organisation operating in such an environment,
in order to remain competitive, the College needs to attract high calibre staff,
including for PSS roles.
128. Because the issues in this appeal initially concerned both the academic staff
and PSS, a great deal of the evidence in the witness statements, has been
about the effort that is devoted to recruiting academic staff, particularly
research-active academic staff. This evidence was intended to show how
important the academic staff are, for the reputation of the College and for its
ability to attract students and funding, and why publication of the salaries
would exacerbate the existing difficulties with recruiting such candidates.
129. The Commissioner found this evidence sufficiently compelling that he
accepted that section 43(2) is engaged in relation to the academic staff. We
are not satisfied, however, from the evidence, that the College has made
out its case as to the prejudice to its commercial interests in relation to the
PSS. There may be some exceptional cases of course, but one cannot draw
on examples from exceptional cases to extrapolate as to the position of the
PSS generally. We find that it is clear from the evidence that in general, the
recruitment of PSS takes place from a wider, national pool, and that the
skills are not as unique to specific individuals as in the academic sector.
130. As already noted, the College has said that there are several ways in which
disclosure would prejudice its commercial interests, First, it says that
disclosure would increase the cost of recruiting and retaining PSS because,
inter alia, competitor universities or private sector organisations, would know
what salary level they would have to offer to lure people away.
131. We accept that the College does have to compete for the best PSS, but we
do not find it likely that the College’s remuneration rates are particularly
unique or that the recruiting efforts of competitor organisations are likely
impaired by a lack of salary information. By its own evidence, the College
bases its salary for any given candidate on his or her existing salary. It is
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reasonable to expect that that salary would generally reflect prevailing
market rates, so what the College then offers would likewise bear a
relationship to those market rates.
132. We do not suggest that this is a precise science; we accept that salaries of
senior individuals rarely are, but we find it implausible that there is no
correlation between the salaries that different universities or other
organisations pay for a particular role. No doubt, there are variations which
take into account a multitude of factors, including amongst other things,
whether the role is in the private or public sector, and the success in
financial terms, of the institution in question. Despite Mr Dempster’s claim
that he has no idea at all what his counterparts in other universities are paid
(which we find particularly surprising given his position as Director of Human
Resources, a role which we would expect would entail being aware of the
extent to which the College’s salaries are or are not competitive), the
College accepts that the senior candidates in issue are going to be
sophisticated individuals. We find it reasonable to expect such candidates
would know the market for their skills, and further that those trying to recruit
them would also know this from the salaries of the incumbents or would be
able to ascertain that information using the services of head hunters for the
relevant sector. The College says it uses such services for senior
individuals, and there has been no suggestion that this is unusual, or that
competitor organisations do not do likewise.
133. In addition, we do not accept that the likely effect of disclosure is that the
College will have to pay more to recruit PSS. Although Mr Dempster said, in
his evidence, that the recent inflationary trend in Vice Chancellor salaries
was because their salaries are published, Mr Large (whose evidence we
found to be altogether more balanced), accepted that this is not in fact the
case, and we do not find that the evidence supports a finding that publishing
the salaries of the PSS would lead to those salaries being increased. There
has been no data produced in evidence, for example, that that has been the
effect in any other sector where salaries have been published.
134. We also find, as indeed the College accepted, that as far as other
universities are concerned, if publication of salaries facilitates poaching, then
that would work both ways.
135. Second, the College says that disclosure would impede salary negotiations
by encouraging candidates to seek higher salaries based on the amounts
paid for posts they regard as being comparable. We do not find that the
evidence before us supports such a finding, and we consider that this
concern, too, has been over-stated. Unlike the case of academic staff where
there are likely to be a number of comparable posts (for example, heads of
departments), the evidence is that that is not the case for PSS roles.
136. We also see no reason to find that the College would not have rational
reasons for such salary differentials as may exist, nor that such comparisons
would only work against the College. Justifying salary differentials both to
existing employees and new candidates, is a challenge we expect would
often be faced by employers in organisations where salaries are individually
negotiated. While we accept that if salaries are published, such discussions
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with employees, existing or potential, may take place on a more transparent
basis, and that there may be some difficult conversations to have, we do not
find that it follows that it would result in prejudice to the College’s
commercial position.
137. Third, the College says it would lose PSS or fail to attract PSS who did not
wish to have information about their salaries disclosed. It says that although
this might not put the College at a competitive disadvantage, nationally, if
other institutions are also required to disclose that information, it would put
them at a competitive disadvantage internationally, because comparable
institutions in countries such as the USA and Australia, do not have to
disclose such information. The College also says that they would lose or fail
to attract candidates from the private sector.
138. We note that the evidence of a number of the PSS quoted in Mr Dempster’s
witness statements do say that if salary information is published, they will
reconsider their position. Although, as noted, there has been no opportunity
for their evidence to be tested in cross-examination, we accept that there
may be some individuals who will feel so strongly about such matters that it
may determine whether they take up or remain in a particular position.
However there is no evidence before us that that would generally be the
case. It has not been suggested, for example, that otherwise suitable
candidates are deterred from applying for the post of Vice Chancellor at any
University in this country simply because the salaries for those posts are
routinely published, nor that in other sectors where salaries are published, it
has a marked effect on the willingness of candidates to apply.
139. We also find, on the evidence, that the recruitment market for PSS is usually
national rather than international in scope. Indeed, Mr Dempster says that of
the 50 or so PSS who have been recruited while he has been at the College,
only one was recruited from overseas. We find, in short, that the prospect of
losing employees or candidates to universities outside the UK which are not
subject to FOIA, is overstated.
140. In addition, the College says that disclosure would lead to ill-feelings
between colleagues and impact the effectiveness of those teams, lead to
adverse publicity, as has been the case in relation to Vice-Chancellors’
salaries, thereby damaging the College’s reputation and standing in the
market place, and may also impact on donations.
141. As to disparities between colleagues, our views are as set out at paragraphs
132 to 133 above. Even if there is initial unrest upon publication of the
salaries, we see no reason to find that that expectations would not adjust. As
to adverse publicity, the natural consequence of there being a public interest
in the information is that the information may well be examined, and opinions
expressed. As we indicated earlier, there is no reason to consider that the
College does not make its remuneration decisions on a rational basis, or
would not be able to justify their decisions. We also do not find, on the
evidence, that the publication of these salaries would affect donor
willingness. There is no evidence that donor willingness has been affected
by the adverse publicity in relation to Vice Chancellor salaries. Also, while
we accept that academic salaries are sometimes funded by gifts, and also
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that confidentiality terms may be agreed with the donors, it has not been
suggested that donors fund PSS positions.
142. In short, we are not satisfied even taking these factors into account
cumulatively, that there is a real and significant risk that disclosure of the
information in relation to the 8 PSS in issue, would be likely to prejudice the
commercial interests of the College. The exemption in section 43(2) is
therefore not engaged.
143. The findings as set out above in relation to section 43(2) are the findings of
the majority. One member of the panel considers that disclosure would be
likely to prejudice the commercial interests of the College because
disclosure would affect the collegiate working of the PCT itself (in the case
of those PSS who are on the PCT), that the College may indeed lose PSS
as a result of disclosure and this would cause disruption, and further that
adverse publicity arising from disclosure may affect donor willingness.
144. With the majority having reached the finding that disclosure would not be
likely to prejudice the commercial interests of the College, we do not need to
go on to consider whether the public interest in maintaining the exemption
outweighs the public interest in disclosure.
145. For completeness, we note that the College has suggested that if we require
disclosure, we should do so by reference to larger pay bands of £30,000
rather than £10,000. There is no proper basis for us to direct disclosure on
that basis. The request was for the information in bands of £10,000, and that
is what was addressed in the Decision Notice under appeal.
Decision
146. The Commissioner has accepted that the exemption in section 43(2) is
engaged in relation to the College’s academic staff. The College is not
required, therefore, to disclose the requested information in relation to those
employees.
147. We find that the exemption in section 40(2) is engaged in relation to the PSS
who are not on the PCT (although not for the two PSS referred to in
paragraph 62). The College is not required, therefore, to disclose the
requested information in relation to those employees
148. We find that the exemption in section 43(2) is not engaged in relation to the
remaining PSS. The College is required, therefore, to disclose the requested
information in relation to those employees.
Signed
Anisa Dhanji
Judge Date: 30 September 2014
Corrections have been made on 23 October 2014 pursuant to Rule 40 of the Tribunal Procedure
(First-tier Tribunal) (General Regulatory Chamber) Rules 2009, which allows for the correction of
clerical mistakes or accidental slips or omissions in a decision.
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