The ICO lifts the lid on the workings of equality schemes

Assuming that the university hasn’t appealed, before publication actually happens (and the usual partisan hubbub kicks off in the press) I thought I’d take a quick look at the ruling on this complex Freedom of Information Act case from the information commissioner.

Long story short, the complainant (which seems to be in the slipstream of this campaign) requested copies of any submissions made to Stonewall’s Workplace Equalities Index and, alongside that, any feedback it got from Stonewall on those submissions. The university supplied the submissions, but relied on section 41 of the Freedom of Information Act FOIA to withhold the feedback.

Section 41 is interesting. Before we had the FOI regime, public authorities’ usual tactic was to argue that almost anything was “confidential”. So various sections of the act create tests – and one of them is on information or advice that a public authority gets from someone else, like legal advice or a tender document, that the “someone else” wouldn’t be so keen on being shared.

To be exempt, disclosure has to constitute a “breach of confidence” on the part of the public authority, someone has to be “able to bring an action” for that breach of confidence to court, and that court action must be actually “actionable”.

To be a breach of confidence, the information must have the “necessary quality” of confidence, it must have been imparted in circumstances “importing an obligation of confidence”, and there must have been an “unauthorised use” of the information to the “detriment of the confider”.

Information has the “quality of confidence” if it is not already in the public domain and it is not trivial. In this case the Commissioner decided that the information isn’t trivial because it concerns the way in which the university’s policies apply to its LGBTQ+ staff and students – and it’s also clearly not in the public domain.

Was there an “obligation of confidence”? Stonewall’s Ts and Cs make clear that information provided to a member, by Stonewall, “by virtue of its Membership Benefits or otherwise, which may be of a confidential nature” should not be disclosed to any other person, and the university confirmed that Stonewall did think the information to be “of a confidential nature.”

Then you have to look at the detriment thing – where an organisation is the confider, it has to demonstrate that it has or would suffer some form of reputational or other commercial detriment. In this case the Commissioner accepted the arguments – that as Stonewall operates in a competitive marketplace alongside other diversity training and guidance providers, disclosing the information, would enable employers to enjoy the benefits of the Diversity Champions Programme without having to pay for it – restricting Stonewall’s ability to generate revenue from its intellectual property and thus fund its wider activities.

So I know what you’re thinking. If the tests for a “breach of confidence” were met, how has the ICO nevertheless ordered Oxford to spill the advice? That’s where things get complicated.

When Charlie Falconer led the passage of the Bill through Parliament for New Labour at the turn of the millennium, he made clear that:

…the word “actionable” does not mean arguable…It means something that would be upheld by the courts; for example, an action that is taken and won. Plainly, it would not be enough to say, ‘I have an arguable breach of confidence claim at common law and, therefore, that is enough to prevent disclosure’. That is not the position. The word used in the Bill is ‘actionable’ which means that one can take action and win.”

Put another way – the Commissioner says that it is not enough to just claim that a breach of confidence could be brought. To rely on the exemption, the action must be “likely to succeed”. In other words, if Stonewall was to take Oxford to court over the breach of confidentiality, the Commissioner has to work out if they’d actually win. And the answer here is – no.

To get there the Commissioner says that the university would have a public interest defence on the basis that the Diversity Champions Programme is a scheme which aims to influence the policies, process and actions of the employers which take part in the scheme. Where those employers are public authorities, the Commissioner says there is a strong public interest in the scheme being transparent so that it is clear how the scheme operates and what effect it is having on the organisations concerned – because “organs of the state” must take care to ensure that they are not seen as “promoting political campaigns”.

In addition, the ruling says:

…there is a strong public interest in understanding how [the] scoring scheme works

…there is a public interest in knowing whether an organisation simply needs to signal that it is welcoming of members of the LGBTQ+ community or whether it needs to go further and denounce those whose views do not mirror those of Stonewall

[feedback linking to training courses] gives the strong inference that there is a link between participation in such events and next year’s index score. The Commissioner considers that this amounts to lobbying correspondence which would again increase the public interest in transparency.

Who knows what the actual feedback and scores will tell us about the character of Stonewall’s scheme, or indeed the character of Oxford’s responses and reactions to that advice. That will doubtless play out in the press shortly.

What is interesting for now is the idea that where a university refuses to disclose third party-supplied information or advice, it can’t just rely on that third party expecting it to be confidential – especially if that third party is involved in making judgements about the university as a public authority. It also puts universities that get advice on anything in a difficult position, especially where the ICO is saying “publish” while you’re being threatened by the folks that supplied the info.

The sector should obviously prepare for a deluge of similar requests re Stonewall and the Equality Charters if hasn’t had them already – “gender critical” group Sex Matters is now in the process of submitting new FOI requests to a whole bunch of public authorities, including the BBC, Channel 4, HMRC and Ofsted, for information they had previously refused to disclose.

Are there wider implications? If nothing else, the case potentially puts anything that anyone has ever received from OfS in a fascinating new light. And I wonder whether the unexpurgated musings of external examiners or solicitors advising on regulatory compliance might now need sharing.

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A spokesperson for the university told the Times in July:

“We have received the decision notice from the ICO and will be providing the feedback from Stonewall. As the decision notice indicates, we had withheld this information as a result of confidentiality commitments and the commercial interests of Stonewall, but the university publishes a lot of information about our policies and practices in this area. We will now provide the Stonewall feedback to the requester in accordance with the ICO’s direction. While we carefully consider the feedback from Stonewall, we have always treated it as advisory only and have not always followed it.”