FOI and reporting of foreign workers

FOIMan looks at claims that FOI may be an obstacle to the government’s plans to force businesses to report on numbers of foreign workers.

Last week’s Conservative Party conference produced many “Seriously?!” moments, but none more so than the speech by Amber Rudd, the Home Secretary, and specifically the proposal to require businesses to report on foreign nationals they employ.

Not surprisingly, many have been critical of this proposal, and over the ensuing days, including on the Sunday political shows, the government has “clarified” or “rowed back” on its position, depending on who you read. The current position (which may have changed again by lunchtime) appears to be that businesses would provide government with figures but not names, and that these wouldn’t be published.

I try to avoid social media at weekends but during a weak moment I happened upon an FOI twist yesterday afternoon. A number of people, most notably Harriet Harman, the senior Labour MP, were suggesting that government would not be able to keep the “list” secret because of FOI.

So would FOI really mean that information provided by businesses about foreign nationals on their payroll would have to be disclosed? Is this another aspect of the proposed policy that government has overlooked?

Well, probably not is the answer on both counts. As several people pointed out, section 40(2) of FOI (the exemption covering personal data) would apply to names of foreign nationals and indeed to any information that could be used to identify foreign nationals. Even if the government only required numbers to be reported, this would be an issue with the numbers reported by thousands of small businesses, where the numbers of such employees would be so low that they would enable individuals to be pinpointed. Section 40(2) of FOI would provide protection for these figures.

The other concern would be that even where figures would not allow individuals to be identified, the effect would be to expose companies to public criticism or worse. In other words that businesses would suffer from being “named and shamed” irrespective of the Home Office’s intentions.

There are several exemptions that might assist. If the businesses gave the data on the understanding that it was being provided in confidence (as government ministers now seem to be suggesting it would be), section 41 of the Act would likely apply. The argument could be made that disclosure would be likely to prejudice the commercial interests of the companies concerned (section 43(2)), or even prejudice the prevention of crime (s.31(1)(a)), or endanger the safety of individuals (s.38(1)). Chris Cook, the BBC Newsnight journalist, pointed out on Twitter that the legislation introducing the requirement to report figures could make it a legal requirement that the figures will be confidential. This would allow the Home Office to use the s.44 exemption which prevents FOI disclosure where this would conflict with another legal requirement.

So there are several ways to prevent disclosure of information about the employment of foreign nationals by businesses through FOI once the Home Office collected the data. There is a much higher risk that the data might be accidentally disclosed through human error – or indeed deliberately released by a disgruntled or politically-motivated individual.

So FOI isn’t an obstacle to what Amber Rudd seems to be contemplating. But I’m not unhappy that politicians and other observers are thinking about how FOI and openness rules might affect government policy. And I’m sure there will be more serious problems for the government if it does choose to pursue this agenda.