In the defences of the secret state, there is suddenly a gaping hole

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Kenneth Roy

It is good to be able to return from our summer break with a success story. Invoking data protection laws, too many senior managers in the public sector have refused to divulge what they are being paid or the size of their taxpayer-funded pension pots. Thanks to the Scottish Review’s persistent campaigning, it will now be more difficult for ‘fatcat’ pay to be kept under wraps….

Kenneth Roy

It is good to be able to return from our summer break with a success story. Invoking data protection laws, too many senior managers in the public sector have refused to divulge what they are being paid or the size of their taxpayer-funded pension pots. Thanks to the Scottish Review’s persistent campaigning, it will now be more difficult for ‘fatcat’ pay to be kept under wraps.
     Almost a year ago, SR first exposed the scandal of incomplete public accounts, revealing for example that seven of Scotland’s NHS area boards – 7 out of 14 – were withholding vital information from their annual reports: the facts about the salaries and pensions of their own top executives. We wrote to the auditor-general for Scotland, Robert Black, complaining of this policy and drawing attention to his own office’s mistaken assurance to us that the absence of such information was exceptional. As our research had proved, it was far from exceptional. Mr Black replied (in a letter to the Herald) that SR had misrepresented him and that, in any case, he had no power to intervene in such cases.
     Disappointed by the auditor-general’s regretful statement of his position, we pressed on. It seemed to us that the worst offender was NHS Shetland, six of whose board members refused consent to disclose salaries and/or pensions in its annual accounts for 2007-08. What made the Shetland case so bad was that one of the six was the chief executive, Sandra Laurenson, the only person of such seniority in Scottish public life who would not reveal her salary. In all six cases, it was claimed that to disclose such information would be a breach of their data protection rights.
     We strongly defend the right of the individual to privacy. There is too much media intrusion into private lives, most of it prurient. But we do not accept that the disclosure of salaries and pensions paid for by the public falls into this unhappy category. Such facts, far from being a violation of privacy, are an essential part of public accountability. Where, logically, does the Laurenson theory end? If we do not have a right to know what the chief executive of a public health authority earns, do we likewise not have a right to know what the prime minister earns, or the judge who sends people to prison, or the Whitehall civil servant who so skilfully facilitated the formation of the present coalition government? If one filing cabinet remains tight shut, how long before they are all conveniently closed in the public’s faces?


‘The commissioner agrees that remuneration of senior public sector employees is a matter of general public interest.’


     So we made NHS Shetland a test case, issuing the board with a freedom of information request for the information missing from its annual report. The request was curtly refused. We were entitled to request an internal review by the Shetland board. This too was turned down. We then referred our case to the Scottish information commissioner, Kevin Dunion.
     There were two surprises fairly quickly. The first was the news, via the commissioner’s office, that NHS Shetland was maintaining that our interest in this matter was of dubious motivation: that we had ‘no legitimate interest’ in the salaries or pensions but merely wished to increase the circulation of the magazine by publishing these facts – in effect that it was all a bit of a commercial wheeze on our part rather than part of a campaign on standards of transparency in Scottish public life.
     The second was that, having submitted our appeal to the commissioner, the board without explanation sent SR the information it had been requesting all along. Did this represent a genuine change of policy? Evidently not: the board had simply decided that it was tired of SR’s prodding into its affairs and wished to spend no more time on what it called ‘this non-productive issue’.
     The commissioner asked us at that point whether we wished to withdraw our application. We decided we did not so wish. No principle had been established or yielded. NHS Shetland was behaving as it had behaved all along – with a curious mixture of arrogance and condescension. (In his decision notice, the commissioner himself expresses ‘disappointment’ at the manner in which the board dealt with our FoI request). So we dug in. ‘An unusual case’ the commissioner now describes it.
     I suppose there was a third surprise – that it took a very long time for the commissioner to reach a decision. Having submitted our application on 21 January, we finally received the decision notice – running to several thousand closely argued words – on 5 July, just before the magazine went on holiday. The outcome represents a fourth surprise. We have won.
     The first question the commissioner had to decide was whether the editor of the Scottish Review had a legitimate interest in obtaining such personal data.
Here is Kevin Dunion’s answer:
     Mr Roy asserted that in a recession and a period where public sector jobs were threatened, remuneration of senior managers was a matter of significant public interest. He highlighted public comments by ministers and politicians who had highlighted concerns regarding what they considered to be “excessive remuneration” paid to some senior public sector employees, and calling for greater transparency in this area. He noted that there appeared to be political consensus in this area, but practical problems in enforcing a culture of transparency if individuals were entitled to refuse to consent to disclosure of information regarding their remuneration.
     The commissioner agrees with Mr Roy that remuneration of senior public sector employees is a matter of general public interest, and he accepts that he has a legitimate interest in accessing the information under consideration in this case. There is a legitimate interest in access to details of the remuneration of the particular individuals identified by Mr Roy, who are all board members in NHS Shetland, because this would allow a more fully informed debate about remuneration of senior staff both within NHS Shetland and across the public sector.


‘The commissioner considers that disclosure would be fair…the commissioner can identify no reason why disclosure should be considered unlawful’.


     Next the commissioner had to decide whether disclosure of the information was necessary to achieve the Scottish Review’s legitimate interests.
     ‘Given the limitations of the information that is publicly available,’ Mr Dunion concluded, ‘the commissioner cannot envisage any alternative means of meeting the legitimate interests identified by Mr Roy…’
     Finally, he had to decide whether disclosure of the information would cause ‘unwarranted prejudice’ to the rights and freedoms of the six individuals.
     Mr Dunion said that, while disclosure of exact salaries was unlikely to be justified, it was appropriate to disclose an approximate amount paid to an individual, ‘for example to the nearest £5,000’. This approach to ‘banding’ of salary information accords with HM Treasury guidelines; indeed the commissioner went on to note that these bandings are included in the title row of the template contained within NHS Shetland’s annual accounts – but with the relevant information excluded. (SR never expected more than banded figures – most public authorities deal with the information in this way).
     The commissioner concludes:
     ‘When considering the balance of the legitimate interests identified by Mr Roy against those of the data subjects, the commissioner considers that the legitimate interests of Mr Roy outweigh those of the data subjects…The commissioner considers that disclosure would be fair…the commissioner can identify no reason why disclosure should be considered unlawful’.
     Game, set and match, then, to the Scottish Review. Better still, NHS Shetland has informed the Scottish information commissioner that it has now introduced a policy requiring the inclusion of salary and pension information of all board and senior management team members in its annual accounts. We hope that all of Scotland’s public authorities will adopt the same policy and that the SR campaign will prove to have been a decisive influence for good.

Read Kenneth Roy in the Scottish Review.