FOI - HR Matters

Published •

Ref No.: 12 24
Request Type: FOI
Date Received: 21/10/24
Date Responded: 13/11/24
Category:  HR Matters

Request

Under the Freedom of Information (Scotland) Act 2002, I request the following three pieces of information.

  1. The whole of the non-disclosure agreement between the Water Industry Commission for Scotland (“WICS”) and Alan Sutherland, the former Chief Executive of WICS, which is referred to in the series of emails between David Satti and the Scottish Government on 18 and 19 March 2024 (the emails which WICS disclosed to the Scottish Parliament’s Public Audit Committee on 31 July 2024).
  2. To the extent not covered by the above:
    1. The “settlement agreement” between WICS and Alan Sutherland regarding Alan’s departure from the employment of WICS, ie the agreement which WICS has extensively referred to in your evidence to the Public Audit Committee, and
    2. Any other agreement, contract or similar arrangement which WICS has entered into with Alan Sutherland between 6 December 2023 and the date of this FOI.

I am happy for you to redact Alan’s personal data from the above, such as his contact details.

The public interest in disclosing the above information clearly outweighs any public interest in maintaining any exemptions which you may consider applying. As both the Scottish Government and David Satti acknowledged in their aforementioned March 2024 emails, there is generally a public interest in the terms of non-disclosure agreements entered into by public sector bodies. I also note that David states in the same email that WICS has already received legal advice which states that WICS can be transparent about the terms of the agreements. The public interest in both disclosing these agreements and in greater transparency on the circumstances surrounding Alan’s departure is clearly evidenced by the continue media interest, the ongoing Parliamentary scrutiny of the agreements, and the fact that your chair just resigned over his role in these agreements.

Given that the Public Audit Committee has now written to Alan asking him to give evidence to the Committee, there is a clear public interest in knowing if Alan’s ability to answer the Committee’s questions is in any way limited by any agreement he has entered into with WICS. Similarly, there is a corresponding public interest in knowing if WICS’s previous, and any potential future, evidence and answers to the Committee have in any way been limited by any agreement.

  1. Agenda item 5 of the minutes of your 6 July 2023 board meeting state that WICS received “a financial request from a previous employee”. I request a copy of:
    1. The request from the former employee, and
    2. WICS’s response to the employee.
    3. If a board paper was prepared for this agenda item for the board meeting, I would also like a copy of that.

I am happy for you to redact personal data which could directly identify the person making the request, such as their name, contact details or specific job title.

Response

Thank you for your request for information dated 20 October 2024.

Your request was for:

  1. The whole of the non-disclosure agreement between the Water Industry Commission for Scotland ("WICS") and Alan Sutherland, the former Chief Executive of WICS, which is referred to in the series of emails between David Satti and the Scottish Government on 18 and 19 March 2024 (the emails which WICS disclosed to the Scottish Parliament's Public Audit Committee on 31 July 2024).
  2. To the extent not covered by the above:
    1. The "settlement agreement" between WICS and Alan Sutherland regarding Alan's departure from the employment of WICS, ie the agreement which WICS has extensively referred to in your evidence to the Public Audit Committee, and
    2. Any other agreement, contract or similar arrangement which WICS has entered into with Alan Sutherland between 6 December 2023 and the date of this FOI.
  3. Agenda item 5 of the minutes of your 6 July 2023 board meeting state that WICS received "a financial request from a previous employee". I request a copy of:
    1. The request from the former employee, and
    2. WICS's response to the employee.
    3. If a board paper was prepared for this agenda item for the board meeting, I would also like a copy of that.

Having searched our files, I can confirm that WICS is holding relevant information.  We have responded to each of your requests below.

  1. The whole of the non-disclosure agreement between the Water Industry Commission for Scotland ("WICS") and Alan Sutherland, the former Chief Executive of WICS, which is referred to in the series of emails between David Satti and the Scottish Government on 18 and 19 March 2024 (the emails which WICS disclosed to the Scottish Parliament's Public Audit Committee on 31 July 2024).

We can confirm that the non-disclosure agreement referred to is the settlement agreement between WICS and Alan Sutherland and there is no separate non-disclosure agreement.  

This information is being withheld under section 38(1)(b) in conjunction with section 38(2A)(a) of the Freedom of Information (Scotland) Act 2002 as it constitutes personal data and to disclose the agreement would breach one or more of the principles under data protection law.  In this case, there is no lawful basis for disclosure.  This is an absolute exemption and does not require consideration of the public interest.

We can however confirm that the amount paid to Alan Sutherland under the terms of the agreement was six months’ salary - £84,800.  Furthermore, some information contained within the agreement was discussed at the Public Audit Committee and is available at: https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-public-audit-committee/meetings/2024/public-audit-committee-26-september-2024.   

  1. To the extent not covered by the above:
    1. The "settlement agreement" between WICS and Alan Sutherland regarding Alan's departure from the employment of WICS, ie the agreement which WICS has extensively referred to in your evidence to the Public Audit Committee, and
    2. Any other agreement, contract or similar arrangement which WICS has entered into with Alan Sutherland between 6 December 2023 and the date of this FOI.

As detailed above, the non-disclosure agreement referred to in the correspondence you reference was referring to the settlement agreement between WICS and Alan Sutherland.  I can confirm that WICS has not entered into any other agreement with Alan Sutherland and therefore, in accordance with section 17, this information is not held.

  1. Agenda item 5 of the minutes of your 6 July 2023 board meeting state that WICS received "a financial request from a previous employee". I request a copy of:
    1. The request from the former employee, and
    2. WICS's response to the employee.
    3. If a board paper was prepared for this agenda item for the board meeting, I would also like a copy of that.

Both the request from the former employee and WICS’s response to the employee are being withheld from disclosure.  This information is being withheld under the following sections of FOISA:

  • Section 38(1)(b) in conjunction with section 38(2A)(a) as the document contains information that constitutes the personal data of one or more parties and to disclose this information would breach one or more of the data protection principles.  In this case, there is no lawful basis for disclosure.
  • Section 26(a) – prohibition on disclosure as disclosure is prohibited by the Human Rights Act 1998.  Specifically, disclosing the information would be incompatible with Article 8(1) of the European Convention on Human Rights which enshrines the right to respect for private and family life, home and correspondence.

The exemptions under sections 38(1)(b) and 26(a) are absolute exemptions and therefore do not require consideration of the public interest.

If you are unhappy with this response to your request, you may ask us to carry out a review by contacting us.  Your request for review should explain why you are dissatisfied and should be made within 40 working days of receipt of this response.  The review will be undertaken by staff not involved in the original process and we will reply within 20 working days of receipt.  

If you are not satisfied with the outcome of the review, you then have the right to appeal to the Scottish Information Commissioner (SIC) and thereafter to the Court of Session on a point of law only.  The SIC can be contacted using the details below:

Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
Telephone: 01334 464610
http://www.itspublicknowledge.info 
or for online appeals: www.itspublicknowledge.info/Appeal
 

Was this information useful to you?
 

Any feedback you provide will be considered for future improvements. Please avoid providing personal information here. We don’t respond to individual comments, but you can contact us if you have a specific query.