Cut Down to Size (12/12/14)
I'm not sure what helped to tip the balance in my recent FoI appeal against North Lanarkshire Council, but here's the submission I made to the Scottish Information Commissioner (SIC) which makes two key points about the public interest.
- A fundamental principle of any job evaluation scheme, especially one bought and paid for with public money, is that the JES and any subsequent pay arrangements should be applied in an open and transparent manner, so that the employees affected by the scheme can have trust and confidence that the JES has been applied fairly and consistently. The same holds true, in my opinion, for the wider public and taxpayer and for someone like myself with a long standing personal and professional interest in the subject of equal pay.
- In addition, I would say that North Lanarkshire Council has failed to make out a credible case as to what possible harm could occur by releasing this information which, in my view, has more to do with avoiding potential embarrassment on the part of the Council rather than anything to do with the good conduct of public affairs and/or the public interest.
But it certainly feels as if we have trend a big corner in the long fight for equal pay in North Lanarkshire and that the Council leadership is finally being cut down to size.
Dear SIC
Application for Decision by the Scottish Information Commissioner
Public Authority: North Lanarkshire Council - Ref: 201402173
Thank you for your email and request for my comments regarding the exemptions claimed by North Lanarkshire Council in response to my Freedom of Information (FoI) request, which are detailed below.
Public Interest Test - Section 30 (c)
1 In my view, the public interest test is satisfied by the subject matter of my FoI request - equal pay - which has been the public policy of successive UK governments and the law of the land for over 40 years, ever since the Equal Pay Act of 1970.
2 The extent to which employers have complied with the spirit and intent of equal pay legislation down the years has been a matter of great public debate and sometimes controversy and in this particular case the issues involve a major public body, Scotland's fourth largest council, and the manner in which North Lanarkshire has used large sums of money to introduce a new job evaluation scheme (JES) in 2006 along with new pay arrangements which flowed from the JES.
3 A fundamental principle of any job evaluation scheme, especially one bought and paid for with public money, is that the JES and any subsequent pay arrangements should be applied in an open and transparent manner, so that the employees affected by the scheme can have trust and confidence that the JES has been applied fairly and consistently. The same holds true, in my opinion, for the wider public and taxpayer and for someone like myself with a long standing personal and professional interest in the subject of equal pay.
4 In this case, North Lanarkshire Council had a clear duty to eliminate the widespread pay discrimination which existed prior to the introduction of the new JES in 2006 and this is only possible by being able to consider important documents such as the report to the Council's Corporate Management Team which formed the basis of my original FoI request. As such, sight of this document is important to ensure that North Lanarkshire Council has behaved responsibly, efficiently and effectively while operating within the broad requirements of the law.
7 In support of my view I would quote the following extract of a unanimous judgment from the Court of Session dated 17 March 2011, which involved an appeal from South Lanarkshire Council against a decision in favour of disclosure by the Scottish Information Commissioner. In deciding the case Lords Marnoch, Brailsford and Mackay commented:
"We say that because, having regard to the Commissioner's findings looked at as a whole, we are satisfied that even applying the stricter test the Commissioner could only have concluded that necessity was made out. In particular, he held that the Requester's own interest coincided with a widespread public interest in the matter of gender equality and that it was important to achieve transparency on the subject of Equal Pay. No better means existed to achieve that goal than by releasing the information in question.”
8 In other words the public interest in equal pay and the Council's behaviour over its JES and the new pay arrangements that flowed from the JES are self-evident and the public interest is, therefore, best served by disclosure.
9 In addition, I would say that North Lanarkshire Council has failed to make out a credible case as to what possible harm could occur by releasing this information which, in my view, has more to do with avoiding potential embarrassment on the part of the Council rather than anything to do with the good conduct of public affairs and/or the public interest.
10 I would also say, finally, that the ongoing proceedings at the Employment Tribunal are a completely separate matter and a 'red herring' as far as my FoI request is concerned, not least because disclosure will not determine the outcome of the tribunal and the Council has produced no argument or evidence to suggest otherwise.
Third Party Personal Information - Section 38 (1) (b) Condition 6
11 I am obviously at something of a disadvantage in responding to the Council's claimed exemption in relation to 'third party personal information' because I do not have a clear idea as to the precise nature of the information that the Council is seeking to withhold.
12 What I would say is that I have provided public bodies with reports and advice in a professional capacity, myself, in the past and the normal practice, in my experience, has always been that any written documents are commissioned on the basis that they became the property of the commissioning body, not the individual who wrote the report.
13 As such, I would expect any 'third party personal information' which may be indirectly connected with my FoI request would relate to senior Council officials or external figures advising the Council, but in either case I do not agree that releasing the data to me would in any way prejudice the rights, freedoms and legitimate interest of the data subjects.
14 Finally in relation to this particular exemption can I refer SIC to a recent case involving an appeal from South Lanarkshire Council to the UK Supreme Court which was dismissed unanimously by five judges in July 2013 - South Lanarkshire Council (Appellant), The Scottish Information Commissioner (Respondent) 2013 UKSC 55 - since both the Judgment and Reasons for the Judgment seem relevant and compelling to me, in relation to the non-disclosure (Condition 6) arguments advanced by North Lanarkshire Council.
I hope this answers all the points you raised with me in your emails, but if there is any further information I can provide I will be happy to do so.
Kind regards
Mark Irvine
