The Information Commissioner’s Office and, now on appeal, the Information Tribunal agreed with the police. The Tribunal also discounted Ms Smith’s claims that sensitive personal data can be disclosed if it is in the substantial public interest to do so. The Tribunal ruled that although there was public interest in establishing data on sexual offences, the higher threshold of substantial public interest had not been surmounted. There was public interest in establishing sexual offences by teachers and others in positions of trust. Substantial public interest could have been for something like prevalence of sexual offender activity or police incompetence in dealing with the issue. The Tribunal decided that although the decision was finely balanced, the police were right not to reveal the information that could have led to identifying individuals in this case.

The ruling can be found here: http://www.bailii.org/uk/cases/UKFTT/GRC/2011/2011_0006.html.

The ICO’s consultation document can be found here: http://www.ico.gov.uk/about_us/consultations/our_consultations.aspx.

Under the FOIA a person can request details from a public authority as to whether the public authority holds certain information and, if so, to have that information disclosed to them. Under the FOIA such information is exempt from disclosure if disclosure would contradict any of the data protection principles.

In this case, the All Party Group asked for information from the Ministry of Defence regarding treatment of people detained at war in Afghanistan and Iraq. The Upper Tribunal ruled that the disclosure of anonymised personal data could not for the purposes of FOIA be considered the processing of personal data as the recipient would not be able to identify any of the persons to whom the data related, and as such the data protection principles did not apply. This was despite the fact that the discloser still owed the people whose data was anonymised duties as data controller under the DPA.

UK Athletics Limited, the UK athletics governing body, provided the information to the UK Sports Council, a body which distributes public funds to support high performance in sport. The applicant had applied for the information to be disclosed under the Act.

The tribunal ruled that the information had been submitted by UK Athletics Limited in confidential circumstances, that the information itself was confidential, and that the public interest argument for disclosure of the information was not strong enough to justify disclosure.

The move seems like a step in the right direction for small businesses. If nothing else, the problem of late payment is in the public eye for all to see. The only issue? So many amendments have been proposed to the Late Payment Directive that MEPs may not vote on it until next April, at the earliest. There will therefore be a delay. But then, how important is it if things are late?

The Tribunal accepted that there would likely to be a prejudice to the DWP’s commercial interests. However, it did not accept that it would actually prejudice. There was no evidence to show that it was more probable than not that there would be prejudice – this was mere speculation. The Tribunal did agree to keep one bit secret, though – Atos’s financial model should have special protection as a trade secret. The Tribunal said that for trade secrets, there was a stronger public interest in keeping it secret because of the investment involved, and competitors would get an unfair advantage. However, for liability caps, benchmarking and the rest of the contract, the public interest favoured an order for disclosure so that the public could know the service levels, performance measures, costs and risks.

To comment on the scope of the Directive, the fees charged for the information or anything else, click here to take part in the consultation: http://ec.europa.eu/yourvoice/ipm/forms/dispatch?form=psidirective2010.

Section 149 of the Equality Act 2010, which received Royal Assent in April, states that public authorities subject to the general equality duty must have regard to the need to (1) eliminate unlawful discrimination, harassment and victimisation; (2) advance equality of opportunity between different groups; and (3) foster good relations between different groups. Section 153 gives ministers the power to impose specific duties through regulations.

The consultation paper proposes the following:

1. Regulations on the specific duties designed to help public bodies meet the requirements of the general equality duty; and

2. The public bodies that will be subject to the general and specific duties.

The specific duties

The Government proposes the following specific equality duties:

1. Transparency. Public bodies will be required to publish equality data relating to their workforces and the services that they provide;

2. Workforce transparency. Public bodies with 150 or more employees will be required to publish, at least annually, data on equality in their workforces (e.g. the gender pay gap; the proportion of staff from ethnic minorities; and the proportion of disabled employees in the organisation);

3. Transparency in public service provision. Public bodies will be required to publish, at least annually, data setting out how they are promoting equality. This will enable citizens to compare public bodies’ equality performance and, where possible, choose between providers; and

4. Transparency about impact on equality. Public bodies will be required to set equality outcome objectives which are specific, relevant and measurable. These objectives will also enable the public to see whether a public body is meeting its own standards and achieving all that it sets out to. Public bodies should review their approach at least every four years.

Which public bodies will be subject to the equality duties?

The consultation paper states two ways that a public body can become subject to the equality duties:

• By being listed in Schedule 19 to the Equality Act 2010; and
• By carrying out public functions.

NB: Annex 5 of the consultation paper proposes adding further public bodies to those listed in Schedule 19. However, some of these bodies will only be subject to the general duty in relation to their public functions.

What happens next?

Responses to the consultation must be made by 10 November 2010, with the Government aiming to publish the results approximately three months later. The Government then proposes to bring the general and specific equality duties into force through regulations in April 2011; however, public bodies will be given a further year before they have to publish their equality objectives and state whether they are being met. Guidance explaining the general and specific duties, and what public bodies will need to do, will be published by the Equality and Human Rights Commission before the regulations come into force.

Our employment team will be closely monitoring the situation, and we will summarise the Government’s response in due course. In the meantime, if you have any concerns or questions about this or anything employment-related, please contact Adam Fuge at adam.fuge@mablaw.com, or Michael Delaney at michael.delaney@mablaw.com.