<p>Date: 19 January 2012 Our ref: AE/FOI Your ref: </p><p>Mr P Harrison Performance, Services & Capacity 12 Hillcroft Legal Services Oldham Level 4, Civic Centre, West Street Oldham, OL1 1UL Tel: 0161 770 3019 Fax: 0161 770 3701</p><p>Dear Mr Harrison</p><p>Freedom of Information Act request</p><p>I refer to your Freedom of Information Act (FOI) Request dated 12th January in which you raise the following request for information:</p><p>“I would be grateful if you would provide me with the FULL settlement cost to the tax payers of this Borough, in relation to the failed prosecution of one Vance Miller and the subsequent out of Court settlement to the former council employee Allen. This is to include ALL costs and to be itemised.”</p><p>In relation to the first part of your question I have set out below the cost of the prosecution of Vance Miller. £ Council’s legal costs (e.g. Prosecuting Counsel fees) 601,439</p><p>Employment of temporary staff 284,787</p><p>Other professional fees (e.g. document presentation system used at the trial) 160,572</p><p>Rental of premises used for the investigation and for the trial 63,907</p><p>Witness travel expenses 17,037</p><p>Printing, stationery and office expenses 16,029</p><p>Other miscellaneous expenses 3,027</p><p>Sub total : 1,146,798 </p><p>PLUS the contribution to the Defence legal costs 962,276</p><p>TOTAL : 2,109,074 </p><p>In relation to your request concerning the out of court settlement with the Council’s former em- ployee Tony Allen, this relates to the provision of the personal data of Mr Allen.</p><p>Section 40(2) of the FOI provides an exemption for information which is the personal data of any third party and where either of the conditions set out in section 40(3) is met. One of the conditions in section 40(3) is that the information comprises personal data as defined in the Data Protection Act 1998 (DPA) and the disclosure of the personal data would contravene any of the data protection principles set out in Part 1 of Schedule 1 to the DPA. </p><p>In order to rely on the exemption provided by section 40, the information being requested must therefore constitute personal data as defined by the Data Protection Act 1998 (DPA). The DPA defines personal information as: </p><p>‘…data which relate to a living individual who can be identified a) from those data, or b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the in- tention of the data controller or any other person in respect of the individual.’ </p><p>Having reviewed the requested information it would appear to be the case that the information is exempt under section 40(2) because disclosure would breach the first data protection prin- ciple. The first data protection principle has two components: </p><p>1. Personal data shall be processed fairly and lawfully and 2. Personal data shall not be processed unless at least one of the conditions in DPA schedule 2 is met. </p><p>In considering whether disclosure of the information requested would comply with the first data protection principle, I have first considered whether disclosure would be fair. In assessing fair- ness, I have considered: i) Mr Allen’s reasonable expectations of what would happen to his personal data; ii) The existence of a compromise agreement between Mr Allen and the Council, which is leg- ally binding and enforceable and is subject to a confidentiality provision which is legally action- able; iii) Mr Allen’s seniority; and iv) Legitimate interests of relevant stakeholders in knowing the details of any agreement.</p><p>The law recognises the important role that compromise agreements can play in employer/em- ployee relationships. Such agreements can avoid the time, expense and stress of litigation in an Employment Tribunal when the relationship between employer and employee breaks down. By entering into compromise agreements, public authorities can save significant amounts of public money by avoiding the risks of litigation. The Employment Rights Act 1996 established the opportunity for parties to enter into a compromise agreement and introduced safeguards to the compromise agreement process which ensure that employees receive independent and ac- countable legal advice before entering into such agreements. </p><p>The Council recognises that the right to access official information under the Act, and the right to reach an equitable compromise in private in an employment dispute are not mutually exclus- ive. Therefore, when there is the prospect of entering into an agreement with a senior officer, the Council has to consider that a balance has to be struck between a public authority’s duty to be transparent and accountable with regard to how it spends public money, and its duty to re- spect a former employee’s reasonable expectations of privacy. </p><p>In this regard the Information Commissioner’s guidance on section 40 makes it clear that the seniority of an official should be taken into account when their personal data is requested under the Act: </p><p>“It may also be relevant to think about the seniority of staff generally: the more senior a person is the less likely it will be that to disclose information about him or her acting in an official capa- city would be unfair.” </p><p>In considering the balancing exercise it is reasonable to assume that an employee who makes decisions which involve expenditure of public funds should expect greater scrutiny about their decisions than junior colleagues. Senior officials are paid out of public funds commensurate with their level of responsibility.</p><p>However, the compromise agreement entered into by the Council and Mr Allen includes a con- fidentiality clause which is binding on both parties. On the basis of this confidentiality clause, which is legally binding, I believe that Mr Allen would have had a clear expectation that the de- tails surrounding the settlement of his claims would not be disclosed. </p><p>In the circumstances, I believe that the public interest must be weighed against the prejudice to Mr Allen’s rights, freedoms and legitimate interests when deciding whether disclosure of the in- formation would be fair and that he would have a strong expectation of privacy and confidential- ity over the details of the circumstances of settlement of his claims and that he would have a reasonable expectation that information about the circumstances of his departure/settle- ment would remain confidential. In the circumstances I take the view that this information is therefore exempt from disclosure. </p><p>If you disagree with my decision on this part of your request then you may appeal in the first in- stance to:</p><p>Paul Entwistle Borough Solicitor Oldham Council Room 328 Civic Centre West Street Oldham OL1 1UL</p><p>Tel: 0161 770 4822 </p><p>Should you wish to appeal further you may do so to the Information Commissioner’s Office and the details are as follows:-</p><p>The Information Commissioner Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF</p><p>Yours sincerely</p><p>For Borough Solicitor </p><p>Alan Evans Group Solicitor Direct line: 0161 770 3019 Email: [email protected]</p>