Colin
I don't believe s40 is an absolute exemption where it relates to information
about a third party (as would be the case when asking about employees' pay).
The condition under Schedule 2 could be either 5(d) or even 6(1) - I don't
think that is the issue. The problem arises in that making the disclosure
without informing staff that you intend to do it, would probably be unfair - not
unlawful.
There may be occasions where an individual has good reason why some of their
work details may not be revealed, such as their work location if they have
been threatened or their absence record if it is likely to indicate a particular
medical condition. Generally, however, I believe it will be the norm to
disclose on request. IMO, withholding details of pay, expenses, etc will be an
exception rather than the rule.
If I still worked in the public sector, I would issue a s10 notice to my
employer. I cannot see any other way of dealing with the issue, and even then the
PI test would have to be applied and my wishes could still be overridden.
Hopefully, though, that would only be where I had committed a crime,
fraudulently obtained public funds or abused my position. But at least it would force
the employer to consider the request on its merits - without a s10 notice they
could just disclose, in my opinion.
Ian B
Ian Buckland
Managing Director
Keep IT Legal Ltd
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In a message dated 30/11/04 11:13:23 GMT Standard Time, [log in to unmask]
writes:
> Notwithstanding the IC's advice, my concern is that without a Schedule 2
> condition being met, the disclosure would breach the 1st Principle. The
> Section 40 exemption would therefore be absolute and not subject to the public
> interest test (if I am interpreting FOIA S2(3) correctly!).
>
> A requirement to disclose could be incorporated into a contract of
> employment and thus bring the public interest test into effect. However, in so doing,
> then my original question, in a modified form, is whether a public authority
> employer can arbitrarily and without any legal requirement impose a
> requirement on an employee that his or her personal pay details can be made public?
>
> The approach being put forward effectively seems to be - apply the public
> interest test first to personal data and then ensure the conditions for
> applying the public interest test are met. Whilst there may be arguments for this
> approach it is not the way the legislation has been framed.
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