Borders council chiefs’ decision to keep quiet about suspended care staff upheld by information watchdog

A freedom-of-information request for correspondence about four SB Cares managers suspended in June last year after being accused of bullying staff was rejected by bosses at Scottish Borders Council, and that decision has now been upheld by Scottish information commissioner Daren Fitzhenry.

Ruling in the local authority’s favour against an unnamed applicant, a decision notice issued by Margaret Keyse, formerly commissioner herself and now the body’s head of enforcement, says: “The council was asked for correspondence regarding four named individuals. The council refused to confirm or deny whether it held the information. The commissioner investigated and found that council was entitled to refuse to confirm or deny whether it held the information.”

The applicant had asked for copies of all council and SB Cares correspondence regarding the employment status and behaviour of the four suspended bosses over the first half of last year.

Not only is the council entitled to withhold any such letters and emails but it doesn’t even have to say if any exist in the first place, Ms Keyse has ruled.

She states: “The applicant named the four individuals in his request and sought all council and SB Cares correspondence relating to their behaviour or employment status and availability in the preceding six months.

“Each part of the request is framed by reference to a named living individual. The commissioner therefore accepts that, if it existed and were held, the information would be personal data.

“The council has acknowledged that the applicant does have a legitimate interest in disclosure of the information as it would relate to allegations of bullying in a care setting, which is a matter of public concern.

“In the circumstances, the commissioner is satisfied that these are matters of legitimate interest, both to the applicant and to the wider public and is satisfied that the applicant does have a legitimate interest in obtaining the personal data.

“The commissioner has considered the scope of the applicant’s request and he accepts that disclosure of the personal data, if in existence and held, would be necessary to achieve the applicant’s legitimate interest.

“Only if the legitimate interests of the applicant outweighed those of the data subjects could personal data be disclosed without breaching the first data protection principle.

“The commissioner finds that the legitimate interests served by disclosure of any information held would be outweighed by the unwarranted prejudice that would result to the rights and freedoms or legitimate interests of the individuals in question in this case.

“The commissioner has given serious consideration to the arguments made by the applicant, but he would note that, while prospective employees may wish to know the details of any allegation of workplace bullying, they would also want reassurance that their personal data would be properly protected in the light of any allegation they themselves may receive in the workplace.

“The test the commissioner must consider is whether it would be contrary to the public interest to reveal whether the information existed or was held.

“While the commissioner has a deal of sympathy with the public interest arguments put forward by the applicant, he is aware that the action of confirming or denying whether the information exists or is held would have the effect of confirming whether the allegations made are accurate.

“This would, of itself, lead to the council breaching its duties as data controller under data protection legislation.

“In the circumstances, the commissioner must find that it would be contrary to the public interest for the council to reveal whether it held the requested information or whether the information existed.”

Councillors agreed to scrap SB Cares and take its services back in-house in September last year and it was wound up in December.

That move came four years after the company, with a staff of 850-plus led by operations director Lynne Crombie and an annual budget of £17m, was set up at a cost of £1.8m.