The Information Tribunal has just confirmed it is not necessary to put the content of compromise agreements into the public domain.
That is good news since most NHS trusts felt it was never right to disclose the contents of such agreements when consultants or senior staff left – for whatever reason. Though of course, it is not uncommon to receive requests for details under the Freedom of Information Act.
Requests were made to various trusts for disclosure of compromise agreements. Some trusts refused to confirm or deny their existence while others disclosed the agreements with redactions. Matters went to the Information Commissioner who decided that compromise agreements contained personal data and were exempt from disclosure under section 40(2) of the Freedom of Information Act 2000. The tribunal agreed. It said disclosure would breach the first data protection principle as it would be unfair considering the doctors’ reasonable expectation of privacy along with the damage or distress that might be caused. This was balanced against the public interest in transparency and accountability.
When considering the reasonable expectation of privacy, the tribunal acknowledged the common use of confidentiality clauses in compromise agreements but accepted it did not have jurisdiction to decide the validity of such clauses.
This outcome should mean trusts can be more confident when redacting compromise agreements to protect staff identities or when keeping them confidential. As always though, each case must be considered carefully on its merits and a proper decision made.