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Posted 11 September 2012
by Martin Laver

Freedom of Information Act requests and Compromise Agreements

Does a local authority have to disclose a Compromise Agreement of one of its former employees?No, says Trago Mills (South Devon) Ltd v Information Commissioner.

The Applicant business, Trago Mills, had a difficult relationship with its local authority in respect of planning applications.  In particular, it was alleged that the planning officer responsible for refusing the majority of the applications submitted by Trago Mills applied bias.  This led to a formal complaint to the council which was investigated independently.  The investigation found insufficient evidence to support the allegations made.

Subsequently, as part of the council’s costs saving measures, the planning officer complained of left on mutually agreed terms.  Those terms were reduced to a Compromise Agreement.  Trago Mills became aware of the departure of the employee and sought details about the departure.  The Judgment of the tribunal records that Trago Mills were suspicious of the real reason for the planning officer’s departure.

Eventually, a Freedom of Information Act request was made to the local authority seeking, among other things, a copy of the Compromise Agreement.  The council refused to provide it on the basis that one of the exceptions to the Freedom of Information Act, section 40(2) in relation to personal information applied.  A complaint was made to the Information Commissioner by Trago Mills alleging that the council had failed to comply with its obligations.

The Information Commissioner confirmed the decision of the council that compromise agreement in questions contained personal data within the meaning of the Data Protection Act and so did not have to be disclosed.  Trago Mills appealed to the Information Rights Tribunal.  The Tribunal confirmed the decision of the Information Commissioner.

This case confirms that public authorities, and their employees, can expect compromise agreements to be kept private and out of public view.  However, this case does not shut the door to a successful application entirely because it was made clear that a request for disclosure might have to be conceded to if there was a greater public interest in doing so.  Perhaps, for example, where there is a very high profile employee who leaves following an issue which has a much wider public interest to it.

It is to be remembered that the Freedom of Information Act applies only to public authorities directly.  Private companies need to be aware of the provisions of it if they contract with local authorities as information they provide, for example as part of a tender process, might be subject to a Freedom of Information Act request.

 

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About the author

Martin Laver

Partner

Partner in the commercial litigation team specialising in disputed trusts and Wills