“… where data subjects carry out public functions, hold elective office or spend public funds they must have the expectation that their public actions will be subject to greater scrutiny than would be the case in respect of their private lives.”

 

Public Interest

There will always be a general public interest in transparency. The authority should consider any public interests that would be served by disclosing the information.

If there is a plausible suspicion of wrongdoing on the part of the public authority, this may create a public interest in disclosure and even where this is not the case, there is a public interest in releasing information to provide a full picture.

Potential public interest in transparency is where there is a suspicion of wrongdoing on the part of the public authority. A requester may, for instance, allege that a public authority has committed some form of wrongdoing, and that the information requested would shed light on this.

For this to be considered as a factor in the public interest test, disclosure must serve the wider public interest rather than the private interests of the requester and the suspicion of wrongdoing must have a plausible basis for the suspicion. If there has been an independent investigation, the outcome of this may indicate whether or not there is any substance in an allegation of wrong doing. The content of the information is important in making this assessment. It may refute the suspicion, in which case there may be some public interest in disclosing the information in order to clear up misconceptions; or it may indicate that the suspicion is justified (a so called ‘smoking gun’), in which case there is an even stronger public interest in disclosure.
 

Expectations of the ‘subject’ of the information

Was the individual given specific assurances about what would happen to their personal data (such as, that it would remain confidential)?

Despite the reasonable expectations of individuals and the fact that damage or distress may result from disclosure, it may still be fair to provide the information if there is an overriding legitimate interest in disclosure to the public.

There may for example be occasions when the requirement to demonstrate accountability and transparency in the spending of public funds will outweigh the rights of the individuals.

1. There must be a legitimate interest in disclosure to the public;
2. The disclosure must be necessary to meet that legitimate interest; and
3. The disclosure must not cause unwarranted harm to the interests of the individual.

The Act does not define what is meant by unwarranted and substantial damage or distress. However, in most cases: substantial damage would be financial loss or physical harm; and substantial distress would be a level of upset, or emotional or mental pain, that goes beyond annoyance or irritation, strong dislike, or a feeling that the processing is morally abhorrent.

For more details on the Freedom of Information Act (click here)