Background

On 15 June 2013, King’s College London (the “College”) received a Freedom of Information request for the job titles of employees in the College earning more than £100,000, with salaries to be disclosed in bands of £5,000.  The College initially responded with salary information but did not disclose specific job titles.  The College upheld its decision on internal review.  The Information Commissioner (the “Commissioner”) found in favour of the requestor and the College appealed the decision to the First Tier Tribunal: Information Rights (“the Tribunal”).

The College’s Position

The College argued that the disclosure of the specific job titles were exempt under:

  • section 43(2) of the Freedom of Information Act 2000 (“FOIA”), as being likely to prejudice its commercial interests and that this prejudice outweighed the public interest in disclosure; and
  • section 40(2) FOIA, on the basis that this disclosure of personal data would contravene data protection principles (it being accepted by the parties that the information constituted personal data under the Data Protection Act 1998 (“DPA”)).

Commissioner’s decision

The Commissioner did not accept the College’s application of either exemption and in its decision notice of 17 February 2014, required the College to disclose both the specific job titles and salary bands of 125 employees, which included both academic and professional staff, citing the “public interest in transparency and openness”. 

If upheld, the decision would almost certainly have led to Universities having to reveal how much they pay top professors and senior managers, exposing the institutions and individuals to unwelcome and dissenting commentary from their colleagues, the public, press and politicians - similar to the scrutiny of Vice-Chancellor pay.  Moreover, the College feared that disclosure would directly prejudice its ability to recruit and retain world class academics and professional staff in a competitive jobs market for top talent; making it less able to attract world class students and compete with national and international universities.

The College appealed the Commissioner’s decision.

The Commissioner’s about-face

Following its decision but prior to the Tribunal hearing in July 2014, the Commissioner changed its position and accepted the College’s argument that the section 43(2) FOIA exemption should apply to its academic staff only. The Commissioner stressed that acceptance of the application of section 43(2) FOIA was limited to the circumstances of this case and the evidence produced by the College.  He cautioned that this decision should not be seen as a precedent for withholding the salary details of senior academic staff but it remains to be seen if this will be the case in practice.

This change in position reduced the number of employees within the ambit of the live, disputed appeal request to 15 non-academic, professional staff.

Tribunal decision

In its decision of 10 October 2014, the Tribunal confirmed that an important was whether these non-academic, professional staff held a position on the College’s senior management team (which the College refers to as the ‘Principal’s Central Team’ (“PCT”). This had responsibility for strategic policy and expenditure decisions. The Tribunal noted that being on the PCT was a “significant” role and that it was important to note that those on the PCT spent a “substantial portion of the time…committed to matters of operational or strategic importance to the College as a whole, beyond their specific functional roles” (emphasis added).

On that basis, the Tribunal’s decision was that:

  • the College’s appeal was allowed for all academic staff and professional staff who were not on the PCT (and that their details could be legitimately withheld under the FOIA); and
  • the College’s appeal was dismissed for the remaining six professional staff who were on the PCT (requiring their details to be disclosed, although it appears that the College may be appealing this decision).

While it has been the College’s practice to set out the number of staff earning over £100,000 in bands of £10,000 in its annual financial statement, the Tribunal noted that aggregated figures do not allow the public to discern the spending decisions the College makes with largely publicly funded money.

Why is this significant?

Professional Senior Staff

Until this decision, it has commonly not been the practice of the higher education sector to disclose employee salaries for specific individuals / post holders, other than the Vice-Chancellor. The guidance issued by the Information Commissioner’s Office has long been that the more senior you are, the more you should expect disclosure under the FOIA, the Tribunal’s comments in this case clearly confirm this. However, although previous decisions have focussed more on central government’s high earners, this decision clearly raises expectations of transparency in the education sector with the Tribunal confirming “we consider that there is a legitimate interest in such questions and that disclosure is necessary for that interest”. This highlights the importance of managing employee’s expectations in this regard, to ensure relationships do not suffer as a result of any institution complying with its legal obligations.

Institutions need to carefully consider requests for staff salaries and ensure that they are managing the expectations of individuals in respect of whether their salary details may need to be put into the public domain (which is what disclosure under the FOIA amounts to).

Academic Staff

Also of note is that the Tribunal accepted that s43(2) FOIA applied and, whilst limited to non-PCT academic staff in this case, it is encouraging for institutions that there was agreement that the disclosure of salary details may prejudice commercial interests of an institution. This is not something that has been widely used in the past and, whilst the Commissioner stated that it should not have a blanket application in the sector, this additional argument to be considered when a request is received, will no doubt prove useful.