Committee Servicing: the Implications of Freedom of Information and Data Protection

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1 Committee Servicing: the Implications of Freedom of Information and Data Protection What data protection and freedom of information implications do I need to consider for committee servicing? People have a general entitlement under the Data Protection Act 1998 to ask to see any information that the University keeps about them. The Freedom of Information Act 2000 gives people the right to ask to see any other (i.e. non-personal) recorded information that the University keeps. Unless a relevant exemption applies, we must provide this information. These requirements apply to agendas, minutes and papers as to all other information. A lot of information about the University s committees is already available through the University website and several are listed in the University s publication scheme, a list of types of information which the University makes available proactively under freedom of information legislation. The publication scheme is available at What is the difference between open and closed items? Open and closed refers to the freedom of information status of the material concerned. Open items may be recorded in open agendas, open papers and open minutes. In each case, you have no hesitation about releasing the details recorded in these papers through the publication scheme or in response to a freedom of information request. Closed items contain information which is subject to freedom of information exemptions protecting it from disclosure. Closed items may be recorded in a closed section of an agenda, in a closed paper or in closed minutes. When recording closed items, the aim is to close as little of the formal record as possible. For example, it is possible to have a closed paper, but for the minute and agenda entry relating to that paper to be open If you classify particular items as closed, you must be able to explain: For which exemption they would qualify under the Freedom of Information Act 2000, and When the need for the exemption is likely to expire. Exemptions are narrow and many are subject to a harm and/or public interest tests. Exemptions fall away over time. For example, discussion of a new policy may be sensitive during the development of the policy but once the policy is announced the background discussion is unlikely to be exempt. You should consider when the exemption is likely to expire. For discussions this is likely to be when the decision has been taken. For personal data where disclosure would breach the data protection principles it will be when the individual dies. For information about the amount paid to a successful contractor the exemption is likely to expire once the tendering process is complete. When closing an item, you should not mislead the public. In particular, you must make it clear that closed items exist. All requests for information will be considered on the basis of the circumstances at the time the request is made. So even if a minute, agenda or paper has been marked as 1

2 closed, if someone asks to see it may be released after all, whether in whole or in part. A complete list of the Freedom of Information Exemptions is available form and a list of the exemptions most likely to be relevant is at the end of this paper. What are the freedom of information and data protection issues for a committee agenda? 1. Structure the agenda in a logical order The agenda structure must identify the discussions which will be held and must not hinder the flow of business to be transacted. A well structured agenda will make it easier to record actions and decisions. 2. Write the agenda so that the whole agenda is open Even if certain papers are closed, on the agenda try to describe them in a way that means that all of the agenda is open. For example, if a paper were about a proposal to discontinue teaching a certain subject and the proposal could not yet be put into the public domain, then perhaps it could be described on the agenda as review of teaching activities. 3. If the whole agenda cannot be open The ideal is to have one open agenda, but if it is not possible to phrase an item on an agenda so that it can be open, create a second, closed agenda. The closed agenda will contain only the closed agenda items. The open agenda must contain open agenda items and a reference to the closed items, for example Closed item. Closed due to substantial prejudice to commercial interests exemption until exchange of contracts. Use separate documents for each and give them a relevant title and file name 4. Clearly indicate if the relevant paper is closed. Even if the entry on the agenda is open, the paper may be closed. If this is the case, ensure that it is marked as closed on the agenda or on the paper s coversheet so that it is not accidentally released to those who do not have appropriate authorisation. 5. Reserved business The nature of reserved business means that it is likely that its paper will be closed, and possibly also its minute or entry on the agenda. Reserved business will always come at the end of an agenda as some committee members may be asked to leave the meeting before it is discussed. 6. Advise committee members that their names may be published online. The Data Protection Act 1998 puts restrictions on the transfer of personal data outside the European Economic Area, which includes publication on the Internet. If you intend to make your committee minutes and papers available on the Internet you must tell members that their names will be published online and give them an opportunity to opt out. You could use one of the following options. Option 1: As part of the appointment process tell new committee members that their names will be published on the Internet and what to do if they object. For some corporate committees consent to publication may be a condition of membership. 2

3 Option 2: Tell committee members at a meeting or via the following statement on the agenda: "The agenda, papers and minutes of this committee may be made publicly available on the University website, or in response to freedom of information requests. Committee members are asked to notify the committee secretary if they object to their names being made available in this way, preferably within [insert number] weeks of this meeting." What are the freedom of information and data protection issues for committee papers? 1. Confirm whether a freedom of information exemption applies The person writing the paper must decide whether the paper is open or closed before submitting it. Open papers will automatically be disclosed in response to freedom of information requests and, if the committee is included in the publication scheme, proactively published, usually on the Internet. Closed papers are scrutinised to establish whether they can be disclosed when a freedom of information request is received, and are not proactively published until the exemption has expired. Exercise caution in claiming an exemption, and seek advice if in doubt before deciding to close a paper. Close papers that contain personal information, such as discussions about named students, or the names of donors who have opted out of publicity, and do not publish them on the Internet. 2. Attach a coversheet If a paper contains closed information, the paper writer must indicate on the cover sheet which freedom of information exemptions apply, for how long the sensitivity is likely to endure, and, if the paper only contains a few closed sentences or items, say exactly what is closed. Whenever possible write the coversheet so that it can be published on the Internet, even if the paper itself is closed. 3. Avoid naming people Do not refer to individuals by name. Instead, refer to their job title or write that paper you that you do not need to include a name. For example, say, The issue has been discussed with the Head of School rather than with Prof Macdonald. 4. Indicate publicly that the paper is closed You must say that the paper is closed, cite the relevant freedom of information exemption and say for how long the exemption will apply. How should I keep track of when exemptions are due to expire for closed minutes, papers or agenda? This is an issue if you publish your agenda, minutes and papers on the Internet, especially if they are included in the University s publication scheme. As you prepare your committee s minutes, papers and agenda, make a note in a spreadsheet or diary when you expect exemptions to expire. At appropriate intervals during the year, check this list and release all the data where the exemption has expired. Should I publish my Committee s minutes, papers and agenda on the Internet? Where your Committee s minutes, papers and agenda are included in the University s publication scheme ( you will normally be expected to publish open copies on the Internet. However, even if they are not included in the publication scheme, there are advantages to publishing them to the Internet. These include: 3

4 Ease of access Increased openness Reduces the possibility of being asked to provide a copy under freedom of information legislation. What should I do with drafts and notes? Destroy draft agenda, minutes and papers and any notes taken during the meeting as soon as they are no longer needed. For example, destroy meeting notes and draft minutes as soon as the final version is approved, and destroy draft papers once you have a final version, unless the paper concerns a major policy initiative and the drafts are required to show changes in approach over time. Committee members and attendees should destroy their meeting notes as soon as they are no longer needed, for example after they have completed their actions from the meeting. 4

5 Appendix A The following exemptions are most likely to be relevant for the publication of Agendas, Papers and Minutes: (i) Audit functions (Section 33, non-absolute) This applies to any public authority which has functions in relation to: the audit of the accounts of other public authorities; or the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions. Information held by a public authority to which this section applies is exempt information ( Closed Business ) if its disclosure would, or would be likely to, prejudice the exercise of any of the functions of the public authority in relation to the above. (ii) Health and Safety (Section 38, non-absolute) Information is exempt information ( Closed Business ) if its disclosure would, or would be likely to, endanger the physical or mental health or the safety of any individual. (iii) Personal Information (Section 40, part absolute and part non-absolute) The exemption contained in section 40 of the Act concerns any information which constitutes personal data. The term personal data is taken from the Data Protection Act 1998 (the DPA ). Broadly speaking, where information in the hands of a public authority relates to an identifiable living individual, section 40 of the Act will need to be considered. It is often believed that the Data Protection Act prevents the disclosure of any personal data without the consent of the person concerned. This is not true. The purpose of the Data Protection Act is to protect the private lives of individuals. Where information relates to people acting in a work or official capacity, it will normally be right to disclose. Thus, guidance on exemption from publication is as follows: Open business Closed Business Names of officials, their grades & job functions. Decisions taken by officials in their official capacity. Details of expenses incurred in the course of official business, information about pay bands, or, particularly in the case of senior staff, details of salaries. CVs (may be reviewed in some cases in future to ensure alignment with other institutions). Home addresses, bank account details, etc. Internal staff disciplinary matters. 5

6 Student assessments. Cases of student academic misconduct. Account should be taken of any damage or distress to an individual acting in a personal or private capacity, but not otherwise (for example sparing officials embarrassment over poor administrative decisions!). (iv) Commercial interests (Section 43, non-absolute) Section 43 provides that information is exempt information ( Closed Business ): (a) (b) where it constitutes a trade secret; or where its disclosure would, or would be likely to, prejudice the commercial interests of any person (where a person may be an individual, a company, or the public authority itself, or any other legal entity). This exemption cannot be claimed in respect of information contained in an historical record. Exemption on these grounds should be considered on a case by case basis as its application may vary depending upon time. For example, the commercial interests of a company might be prejudiced if certain information was made public whilst the company was tendering for a contract. However, if the same information was requested some time after the contract had been awarded, there may not be the same prejudice. The information must not already be in the public domain, it must be of restricted availability and definite in character. 6