I think it’s fair to say that the word “redaction” was not in widespread use until its topicality in the last couple of weeks, thanks to the official publication of MPs’ expenses. According to the OED, redaction means “the process of editing text for publication”. Of course, in the recent example this meant liberal use of a permanent marker or similar with the intention (futile as it turned out) of obliterating numerous details which those in the Parliamentary Expenses Office decided (or were told) we ought not to see.
The Telegraph‘s chief political commentator, Ben Brogan, unsuprprisingly has another take on it: “it means that the text in the MPs’ expenses files has been censored”.
Redaction is familiar but frequently hotly disputed territory for employment lawyers and provides tricky practical dilemmas for those who deal with personnel records. I am therefore taking a look at a few fairly recent cases which have highlighted the problems which can be enountered.
Information Commissioner’s Decision Notice 12/1/09 – re Leicester City Council
Among the duties of the Information Commissioner is to decide whether requests for information made to a public authority comply with the relevant parts of the Freedom of Information Act 2000. In this case a council worker applied for two internal vacancies and was unsuccessful on both occasions. In July 2007 he sent an email asking for (“suitably redacted if necessary”) the shortlisting matrix document, copies of the application forms submitted by other candidates, the assessment forms and interview notes for all candidates and the references provided in respect of his application. He was provided with the matrix document and the references but not the other documents.
After time to consider the matter the Council provided the assessment forms and interview notes (duly redacted to remove personal data) and confirmed that it would not be providing the other application forms. The matter was referred to the Information Commissioner and the Council maintained that any further disclosure would enable identification of the other applicants. For example, disclosure of information about educational background, skills, and qualifications, detailed work experience and referee details would enable identification of individuals “with relative ease”. It claimed that this could deter other applicants if they thought that their application information could become publicly available. Above all, the Council maintained that such disclosure would constitute breaches of the rights of the individuals concerned under the First Data protection principle of the Data Protection Act.
Perhaps surprisingly, the Information Commisioner determined that the Council was in breach of the Freedom of Information Act and directed that the Council was to provide the complainant with a general summary of the experience and qualifications of each applicant “along the lines of …pen portraits” or to provide the application forms but redacted by “removing all information which would enable the identification of the applicants”.
I think that it’s reasonable to assume that the other job applicants cannot have imagined when applying for the posts that what they would reasonably regard as highly confidential documents could be the subject of such scrutiny and(albeit limited) disclosure.
Webster -v- Ridgeway Foundation School Governors
A different approach to the same dilemma was taken in the High Court in this case which was decided last month.
The applicant was a white pupil who had been injured at school as a reult of the actions of Asian offenders including other pupils. The pupils concerned were convicted of wounding with intent. The disclosure issue arose in the context of a claim against the Governors alleging negligence in allowing racaila tensions to develop. Disclosure was provided but the names of pupils had been redacted. An application was made for unredacted copies including the names of alleged of alleged perpetrators and victims of racism, bullying and aggression over an extended period.
In the context of court proceedings, there is a general duty of disclosure by the parties of all relevant documents, whether or not they help or harm their respective cases. The court therefore determines first whether the documents requested are (or are at least likely to be) relevant. Similarly, if documents are redacted then the starting point is to consider whether the redacted information is likely to be relevant, in the sense that it will or may be material to the determination of the issues before the court.
The school maintained that it should not provide the information requested, taking into account its obligations under the Data Protection Act. However, the Act provides specific permission to disclose data which would otherwise be protected when to do so would be in the interests of the administration of justice. It follows that if the court decided that the data was relevant then the normal restrictions applied pursuant to the Data Protection Act would not prevail.
Also considered was the right to respect for family and private life under Article 8 of the European Convention on Human Rights, incorporated in English law by the Human Rights Act. The court took the (undoubtedly sensible) view that this right needed to be considered from the perspectives of all concerned and not just the party seeing the disclosure. For example the disclosure of the names of other alleged victims might impact on their Article 8 rights.
Issues of confidentiality and the rights of children (as recognised in Article 3 of the UN Convention on the Rights of the Child 1989) were also considered.
The upshot was that the court applied these considerations on an item by item basis and, in many but not all instances, determined that the names should be disclosed.
It is often easy to jump to conclusions about the rights of individuals in the context of freedom of information, data protection and confidentiality but the reality is that such rights can often create conflicts and it is not always clear which will prevail. What is abundantly clear is that this is going to remain a fertile area for disputes for some time.