Ian,
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.
Colin Atkinson
Data Protection Officer
University of Leicester
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]]On Behalf Of [log in to unmask]
Sent: 30 November 2004 10:10
To: [log in to unmask]
Subject: Re: Salaries - Personal Information under FOI?
Colin
I don't disagree that pay is an item of personal data. The problem is with
the FOIA in that the disclosure of the information is likely to be seen as "in
the public interest" with a right to know rather than a need to know. That's
where the legal imperative will come from - in my opinion of course.
The ICO seems to agree, see his FOI guidance note number 1 - pages 4 & 5.
Ian B
Ian Buckland
Managing Director
Keep IT Legal Ltd
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--------
In a message dated 30/11/04 09:39:26 GMT Standard Time, [log in to unmask]
writes:
> In another context, S70(1) of FOIA (amendment to DPA S33A(2)) clearly
> considers pay as personal data. As such the S40 exemption would presumably apply
> to details of pay. The spirit of the legislation as opposed to the spirit of
> freedom of information therefore seems to be not to disclose.
>
> As there does not seem to be a legal imperative to disclose can it be argued
> that the processing i.e. disclosure of pay details, is necessary?
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