Latest updates - last updated 8 January 2023
8 January 2023 - We have added a new section to clarify the meaning of ‘holding’ in the context of FOIA, which includes new relevant examples from Tribunal’s decisions. This section includes an explanation of the test of the balance of probabilities which the ICO applies to determine if information is held in the event of a complaint which disputes if the authority holds the information. You can find these change in the section “What does ‘holding’ information for the purposes of FOIA mean?”.
We have provided more detailed guidance about when information is considered to be ‘held’ for the purposes of FOIA, including information held on non-corporate channels of communications. Ie we have provided an overview of different scenarios of a) when information is considered to be held by the authority otherwise than on behalf of another person b) when information is considered to be held by the public authority on behalf of another person c) when information is considered to be held by a third party on behalf of the public authority.
We have added new examples from Tribunal’s decisions. You can find these changes in the section “Who holds the information?”. We have added a new section to provide more detailed advice about the practical considerations you should be mindful of when considering if you hold information for the purposes of FOIA, including in relation to good information management practice. You can find this change in the section “what else should we be mindful of when applying section 3(2)”?.
About this detailed guidance
This guidance is written for the use by public authorities. It will help you better understand in which circumstances you hold information for the purposes of the Freedom of Information Act 2000 (FOIA). Read it if you have questions not answered in the Guide or if you need a deeper understanding to help you apply section 3(2) in practice.
This guidance is relevant only in relation to requests for information which is not environmental. If the information is environmental, you should read the guidance on information you hold for the purposes of the EIR instead.
- What does FOIA say?
- What does ‘holding’ the information for the purposes of FOIA mean?
- Who holds the information?
- What else should we be mindful of when applying section 3(2)?
- Further reading
(2) For the purposes of this Act, information is held by a public authority if—
(a) it is held by the authority, otherwise than on behalf of another person, or
(b) it is held by another person on behalf of the authority.
When requested, section 1 of FOIA requires you to provide information you hold as a public authority, unless you can demonstrate an exemption applies. Section 3(2) sets out in which circumstances information is considered to be ‘held’ for the purposes of the Act.
The effect of section 3(2) and the meaning of ‘held’ in the context of FOIA were clarified through case law, in the landmark decision of University of Newcastle upon Tyne v Information Commissioner and BUAV.
On section 3(2) and the meaning of ‘held’, the First-tier Tribunal (‘FtT’) said:
“The effect of this subsection [3(2)] is to confirm the inclusion of information within the scope of FOIA s1 which might otherwise have been arguably outside it. The effect of paragraph (a) is that information held by the authority on behalf of another is outside s1 only if it is held solely on behalf of the other: if the information is held to any extent on behalf of the authority itself, the authority ‘holds’ it within the meaning of the Act. The effect of paragraph (b) is that the authority ‘holds’ information in the relevant sense even when physically someone else holds it on the authority’s behalf.” [para. 47]
“ ‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment (…). However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority.” [para. 48]
On appeal, the Upper Tribunal found that the FtT’s statement at para. 47 was “an accurate statement of the law” [para. 27].
The BUAV case means that – to decide if you ‘hold’ the information for the purposes of FOIA – you need to establish if there is an ‘appropriate connection’ between the requested information and your role and functions as a public authority.
The relevance of the connection does not necessarily diminish over time, even though circumstances have changed since the time you recorded the information.
You need to assess this on a case-by-case basis by considering the context and circumstances of each individual request. When the request captures multiple pieces of information, you need to make the assessment about each individual piece.
In Department of Health v Information Commissioner and Lewis ( EWCA Civ 374, 24 May 2017), the Court of Appeal decided that the Department held a Minister diary for the purposes of FOIA even though the Minister was no longer in post at the time of the request. The Court also decided that the Department held for its own purposes entries relating to non-ministerial activities.
The applicant had requested the contents of a Minister diary between 12 May 2010 and 30 April 2011. When the request was made, the Minister had left their post.
During the appeal, the Department argued that the question of whether there was an appropriate connection had to be determined by reference to each diary entry. The Department also argued that – by taking this approach – it did not hold entries relating to non-ministerial activities and that, after the Minister had left their post, the appropriate connection with the information had ceased to exist because the entries had become ‘historic’ [para. 40–42].
The Court of Appeal agreed that the question of whether information was held had to be determined in relation to each piece of information. However, it decided that [para. 55–57]:
“It seems obvious that (…) the information in the diary was "held" by the Department for the purposes of the FOIA during such time as Mr Lansley was a Minister in the Department (…) It was set up and maintained by the Department and at its cost. At the very least the diary was (…) an efficiency tool to enable the Department, particularly no doubt the Minister's private office, and the Minister, to know what his upcoming appointments would be, with whom and where, and to facilitate decisions about his availability for other appointments, and also to be a record of what he had done, who he had seen and where, should those matters become relevant to Mr Lansley's Ministerial functions and his private office after the diarised events had occurred.”
“Plainly, therefore, while Mr Lansley was a Minister in the Department, for the purposes of section 3 of FOIA the entries in the diary were held by the Department for itself even if they were also held (in the case of personal or constituency matters) for Mr Lansley as well.”
“I cannot see that the termination of Mr Lansley's Ministerial position made any difference to that position. I do not see that the entries suddenly became held for Mr Lansley alone for the purposes of section 3(2)(a) of FOIA. In particular, it seems to me clear that it remained relevant or potentially relevant to the Department to know, as a matter of historical record, where Mr Lansley had been and with whom on particular occasions, should there be a political, journalistic or historical interest raised with the Department in relation to those matters.”
Several factors can help you decide the extent to which you hold information for your purposes as a public authority. These factors include:
- the extent to which you have access to the information,
- the degree of control you have over the information, including controlling who has access to it and how it is used,
- the extent to which you use it for your own purposes, regardless of whether it was created by a third party,
- the extent to which you had an input in its creation or alteration,
- the extent to which you retain ultimate responsibility over the management of the information, including its retention and deletion, and
- whether you are merely providing storage, either on your physical premises or on your electronic and cloud systems.
This is not an exhaustive list and the weight attached to each factor varies depending on the circumstances of each case.
In the BUAV case mentioned above, the First-tier Tribunal noted that, depending on the particular facts of the case, factors such as those outlined above “may be useful matters to consider when looking at whether the public authority holds the information, but they should not be read as if they had been intended as definitive tests of whether information is ‘held’” [para. 49].
On appeal, the Upper Tribunal validated this approach as correct.
In the BUAV case, the First-tier Tribunal also stressed that ‘holding’ the information is not a purely physical concept. It covers circumstances in which:
- you physically hold the information, eg in a storage facility on your premises or offsite, and
- you hold the information digitally, eg on your local IT Network, in a cloud storage or a hardware storage device (for example, a USB stick or an external hard drive). This includes personal devices and non-corporate channels of communication used by your staff when storing, sending or receiving official information.
Determining whether information is held is a factual issue, rather than a question of law. In the event of a complaint to the ICO, the Information Commissioner will decide whether you hold the information based on the balance of probabilities.
The test of the balance of probabilities was established early on by the First-tier Tribunal in Linda Bromley and others v Information Commissioner & the Environment Agency (EA/2006/0072, 31 August 2007).
At para. 13, the Tribunal said:
“the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof (…). We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed.”
Under section 3(2)(a), you have to determine if you hold the information for your own purposes or solely on behalf of another person. If you are a government department, section 81(1) explains that each department is considered as a separate person.
There may be situations in which the distinction between information you hold for your own purposes and information you hold solely on behalf of another is not clear-cut.
For example – in situations in which you are providing clerical or administrative support to another person – it might not be immediately clear if there is information you hold to any extent for your own purposes.
In Digby-Cameron v Information Commissioner (EA/2008/0010, 16 October 2008), the First-tier Tribunal (FtT) decided that the public authority – Hertfordshire County Council – held the requested information solely on behalf of another person, the Coroner.
The applicant had requested information from the Council about the transcript of a Coroner’s hearing, which the Coroner held in tapes. On appeal, the applicant disputed that the authority held the information solely on behalf of the Coroner.
The Council was responsible for the appointment of the Coroner, paid their salary and provided the relevant facilities on its premises as well as administrative support.
However, the FtT noted that the Coroner was the holder of an independent judicial office and was subject to a different legislative regime. That is, the Coroner’s Act 1998 and the Coroner’s Rules 1984. Under this regime, the Coroner was required to retain inquest’s documents for a certain period of time and was responsible for deciding who could have access to it.
As a result of this, the FtT found that “the Council held the information in the tapes solely on behalf of the Coroner, such that the information fell outside the jurisdiction of FOIA” [para. 19].
In this example, the Tribunal decided that the Council held the information only on behalf of the Coroner. However, there may be situations in which that is not the case. For example, if you are a local highway authority, you could be holding a copy of a Coroner’s report following a road traffic accident for your own purposes – eg to consider if any road safety measures are necessary.
In contrast to the above example, in McBride v Information Commissioner and the Ministry of Justice (EA/2007/0105, 27 May 2008) the First-tier Tribunal reached the opposite finding.
In McBride, the First-tier Tribunal decided that the Privy Council Office (PCO, now absorbed into the Ministry of Justice) held the requested information for its own purposes. As a result, it decided that the information fell within the scope of FOIA.
The applicant had requested information about grievances they had lodged with the University Visitor at the University of London. This was a role existing in English and Welsh universities prior 2004. The role of the Visitor was to decide on disputes between a university and its members.
The Tribunal found that the PCO carried out all the administrative and management functions relating to the office of the Visitor, including dealing with all grievances lodged with them.
At para. 29–30, the FtT also noted that:
“All correspondence was sent out on the PCO’s headed paper and signed by PCO staff. Senior civil servants in the PCO recommended to the Visitor what decisions should be taken (…) These decisions were usually approved by the Visitor, with only minor changes.”
“The staff who undertook this work was the same staff that did other PCO work and their time was not separately accounted for. All staff costs and other expenses were paid for from the PCO’s budget. Indeed, we note that this work was included in the PCO’s Departmental Plan alongside all other work carried out by the PCO”.
The FtT concluded that the role of the PCO in relation to the University Visitor was part of its core functions as a public authority.
As a result of these findings, the Tribunal concluded that the PCO held the information for the purposes of FOIA.
As these examples show, you need to assess if there is an ‘appropriate connection’ with the information on a case-by-case basis, by considering the context and circumstances of each individual request.
Circumstances in which you are likely to hold the information to any extent for your own purposes include:
- you are acting as a sole trustee in a charitable trust. This is likely to apply if you are a local authority because local authorities can act as trustees of public facilities such as playing fields and leisure centres, or as trustees of funds. A charitable trust is a type of incorporated charity which has no separate legal personality. When acting as a sole trustee in a charitable trust, you could be holding information for the purposes of FOIA on the basis that the information is held for your own purposes. This is because the Local Government Act 1972 draws no distinction between the functions of a local authority when they act in this capacity and their functions when they act as trustees of a charitable trust.
In Ian Hutchinson v Information Commissioner and Kirklees Metropolitan Council EA/2017/0194 (23 January 2018), the First-tier Tribunal decided that the information the authority was holding in their capacity as a trustee in a charitable trust was held for the purposes of the EIR within the meaning of reg. 3(2)(a).
The applicant had requested information about Clayton Baths, a facility owned by a charitable trust. Kirklees Metropolitan Council acted as the sole trustee
The Council’s position was that they held the requested information in their capacity as a trustee, rather than in their capacity as a local authority.
The First-tier Tribunal rejected this argument. It noted that a charitable trust is not a legal entity in its own right and found that:
“[S]ection 139 [of the Local Government Act 1972] expressly confirms the power of a local authority to receive assets and act as a charitable charity (…) s.139 indicates that there is no clear division between Kirklees’ functions as trustee and its other functions. If a local authority chooses to act as trustee of a charitable trust, the performance of its duties as trustee is one of its functions as a local authority” [para. 27 – 28].
As a result, the First-tier Tribunal concluded that Kirklees Metropolitan Council was holding the information for the purposes of the EIR and dismissed the appeal.
This decision was made in the context of the EIR. However, it is relevant also in the context of requests for information submitted under FOIA. For example, if you receive a request for financial information about the trust, you are likely to be holding this type of information for the purposes of FOIA.
- Information held by local councillors only when carrying out functions of a local authority. This includes circumstances in which councillors:
- hold information in their role as cabinet members,
- have executive responsibility for a service area,
- represent the local authority in relevant forums, eg a regional forum, and
- carry out relevant administrative public functions.
It does not include circumstances in which local councillors hold information when performing their function as elected members. That is, when corresponding with residents of their ward, when discussing council business with fellow councillors in the context of a voting strategy or when campaigning on behalf of their political party.
In Voyias v Information Commissioner and London Bureau of Camden (EA/2012/0096, 24 January 2013), the First-tier Tribunal (FtT) decided that the requested information was not held by the Council within the meaning of section 3(2)(a).
The applicant had requested a copy of the correspondence sent and received by a named councillor on his gov.uk Camden Council email account.
The FtT noted that councillors are elected representatives of a ward in their local community. However, they are not Council’s employees. Although they may be entitled to expenses and an allowance, they are not paid a salary by the Council. However, councillors can carry out some functions on behalf of the Council.
The FtT examined the requested information in this context in order to establish if there was an ‘appropriate connection’ between the information and the Council.
At para. 23, the FtT found that:
- any private correspondence sent or received by the councillor through the Council’s email account was not held for the purposes of FOIA because “[T]he information is not work-related and did not arrive at the council server by virtue of the councillor’s work as a councillor or any job he performs for the Council”,
- the correspondence relating to the councillor’s trustee work was not held by the authority for the purposes of FOIA because this work was not related in any way “with the Council’s work, or even with the councillor’s work as a councillor of the authority”, and
- the correspondence between the councillor and wards representatives was not held by the authority for the purposes of FOIA because “the councillor in receiving or sending correspondence was acting in a role that was independent of the Council and not in any direct way on behalf of the Council.”
As a result of these findings, the FtT dismissed the appeal.
There are cases in which you are holding the information solely on behalf of another person.
This does not necessarily mean the information does not fall within the scope of FOIA. For example, you might be holding information on behalf of another public authority. In this scenario, it is good practice to advise the applicant where they should redirect their request.
By contrast, if the other person is not subject to FOIA, it is likely that the information does not fall within the scope of the Act.
Some examples of this scenario include:
- non-official communications held on your premises or on your corporate channels. For example, you do not hold for the purposes of FOIA email communications between trade unions and their members made using corporate email accounts. However, communications between trade union officials and representatives of the management side in the course of negotiations and consultations could fall within the scope of FOIA. Eg you could hold for your own purposes trade unions’ official responses to an equality impact assessment you carried out in the workplace when implementing policies.
You are also unlikely to be holding for the purposes of FOIA private communications sent and received by members of your staff through corporate email accounts. By contrast, you are likely to hold for the purposes of FOIA official information sent and received by your staff via non-corporate channels of communication.
- Information held by electoral registration officers in the discharge of their statutory duties. Electoral registration officers are appointed by local authorities to compile and maintain the electoral register. However, they exercise functions which are separate from those of the appointing authority. They are also not public authorities in their own right. If you are a local authority and are holding information produced by the electoral registration officer, you are holding that information solely on their behalf, not for your own purposes.
- Information held by official receivers in their role as statutory office holders. Official receivers are officers responsible for carrying out the first stages of bankruptcies and companies wound up by a court. However, they are also civil servants employed by the Insolvency Service, an executive agency sponsored by the Department for Business Energy and Industrial Strategy. Any information produced by the receivers when carrying out courts’ instructions is information held by the Insolvency Service exclusively on behalf of the official receivers.
In decision notice IC-110771-D0N7, the Information Commissioner found that the Official Receiver held the information in their statutory role. As a result, the information did not fall within the scope of FOIA.
The applicant had requested from the Insolvency Service a number of documents about specific winding up proceedings. The authority refused the request on the basis that it did not hold the documents for the purposes of FOIA.
At para. 24–25, the Information Commissioner said:
“An Official Receiver is both a civil servant acting at the direction of the Secretary of State for Business, Energy and Industrial Strategy and an officer of the court exercising statutory functions. When the Official Receiver is exercising their statutory functions, they are acting separately from the Insolvency Service (which exercises powers on behalf of the Secretary of State) and therefore the information they hold will not be covered by FOIA.”
“The Commissioner considers that information requested by the complainant all relates to documents that would either have been created or acquired in the process of insolvency proceedings before a court. Therefore to the extent that any of this information is held by the Official Receiver, it would be held in their role as an officer of the court, pursuing the statutory functions of the Official Receiver. As such the information would fall outside the scope of the FOIA as it would not be held either by or on behalf of the Insolvency Service.”
Section 3(2)(b) covers circumstances in which the information is held on your behalf by another person. When you receive a request for information, you must consider if any information relevant to the request is held by an external third party you have dealings with. The distinction will not always be clear-cut. To help you establish this, think about the full context of the request and the degree of connection between the information held by the third party and your functions as a public authority.
Regulation 3(2)(b) is likely to be relevant in circumstances such as:
- You have arrangements in place for documents or archive storage. This includes situations where you use document management services, eg you have leased offsite storage facilities to keep your physical records and documents. It also includes arrangements for the keeping of your legal documents by a firm of solicitors. Similarly, if you have placed records for safekeeping with a local archive or county record office, it is likely that they will be holding the information on your behalf. This will be the case if the archive or record office are separate bodies and if you have not relinquished the ownership of the archive to them.
- You have outsourced some of your services to a private contractor or have other contractual arrangements in place with a third party.
In these circumstances, the contract terms can help you establish whether the third party is holding information on your behalf. This is the case also if you do not have routine access to the information generated by the contractor.
In decision notice FS50800160, through a close reading of the contract’s terms, the Commissioner reached the conclusion that the contractor held the requested information on behalf of the authority by virtue of section 3(2)(b) of FOIA. In reaching this decision, the Commissioner gave weight to a clause in the appendix of the contract which gave the authority access to certain information which related to one of its core functions.
The Department for Work and Pensions (DWP) outsourced some of the tests to determine eligibility for Personal Independence Payments (PIP) to two private companies. PIP is a welfare benefit aimed at providing support with extra cost of living expenses to Disabled adults.
In Northern Ireland (NI), the Department for Communities (‘the Department’) is responsible for administering social security and welfare as one of its devolved functions. Capita was one of the two private companies to which eligibility for PIP had been outsourced, covering the NI region.
The request to the Department concerned data on approval-related audits carried out by Capita.
There was no provision in the agreed contract terms that required Capita to automatically provide this information to the Department.
However, during the investigation, the Commissioner found a clause in Appendix 3 of the contract between the Department and Capita. The clause stated that:
“The Authority intends, wherever it can, to capture and collate information through its IT system(s). However, the Authority does reserve the right to make reasonable requests for information from the Provider including ad-hoc requests for information from time to time”.
In the Commissioner’s view, the requested information was about the monitoring of a function which the Department had contractually devolved to Capita – ie medical assessments for determining the eligibility of state benefits. The Department could make a reasonable request for it under the terms of the agreement and Capita would be contractually bound to comply.
Consequently, the Commissioner decided that “section 3(2) operates so that the requested information is held by Capita on behalf of the public authority” [para. 33].
Although a helpful tool, the contract will not always give you a definite answer as to whether a third party holds information on your behalf. You should always consider all the facts relevant to the request and establish if there is an appropriate connection between the information and your functions as a public authority.
In William Visser v. Information Commissioner and London Borough of Southwark Council, EA/2012/0125 (11 January 2013), the First-tier Tribunal decided that the information was held by the contractor on behalf of Southwark Council, even though there was no contractual requirement for the contractor to collate and provide the requested information to the authority for monitoring purposes.
The applicant had submitted a request for information to the Council asking for a copy of the attendance register at Seven Islands Leisure Centre. The Council had contracted out the management of its leisure centres to a company called Fusion Lifestyle.
Under the contract’s terms, Fusion was required to submit an annual report including key performance indicators and trend analysis of usage figures. There was no contractual requirement for Fusion to keep a register nor to provide this kind of granular information to the Council. However, on examining the evidence, the Tribunal found that there was a connection between the requested information and the Council. In the Tribunal’s view, this connection meant that the information was held on behalf of the Council.
Information you shared and instructions you gave, as a client, to solicitors. In this scenario, the solicitors could be holding information on your behalf to the extent they are not holding it for their own purposes (eg to defend themselves in negligence claims).
In Francis vs Information Commissioner and South Essex Partnership NHS Foundation Trust, EA/2007/0091 (21 July 2008), the First-tier Tribunal decided that a bundle of annotated papers were held by a firm of solicitors on behalf of the Trust by virtue of section 3(2)(b).
The applicant had submitted a request for information to the Trust, asking for a number of records and documents about the death of her son. This included papers held by the firm of solicitors which had represented the Trust at the death inquest.
The Tribunal noted that some pages on one of the disputed papers were annotated, which could suggest they were the solicitors’ working papers. This could mean the solicitors were holding the papers for their own purposes, rather than on the Trust’s behalf.
However, at para. 36, the Tribunal said:
“[T]he status of the bundle as working papers belonging to a solicitor depended largely on its annotated nature. The Tribunal concluded that, on the balance of probabilities, the annotation was already on the documents at the time they were passed to the solicitors. As such, it could not be regarded as a set of working papers. Indeed, if the recollection of the solicitor at Bevan Ashford was correct, that the bundle he worked on had been “heavily annotated”, he would seem to be referring to a different bundle. It is more likely that the bundle was a clean copy of the papers held originally for the purpose of representing the Trust at the inquest.”.
As a result, the Tribunal decided that the solicitors were holding the papers on behalf of the Trust and ordered its disclosure to the applicant.
Likewise, if you commissioned work to external consultants, they might be holding some information on your behalf. This depends on the nature of the relationship and the extent to which they retained the information for purposes relating to your work and functions as a public authority.
In Chagos v Information Commissioner and Foreign and Commonwealth Office ('FCO') (EA/2011/0300, 4 September 2012), the First-tier Tribunal (FtT) decided that the consultants did not hold the requested information on behalf of the FCO.
The applicant had requested a copy of the report and drafts about a study commissioned by the FCO, including any documents “held by consultants or sub-consultants instructed in the matter” [para. 6].
At para. 64–65, the FtT said:
“The consultants were obliged to submit a draft final report to the FCO for comments (Terms of Reference, paragraph 6.3). This would then be the document that the FCO held. Any copies of drafts which the consultants retained after the conclusion of the appointment would be for their own records, as would their copies of letters written. It is very common for professional advisers to keep their own copies of drafts, letters or final reports for a period of time, in case of any future dispute over fees or over the quality of the work. The consultants were free to destroy or delete such copies as they might wish, without asking the FCO. (…) On this issue, therefore, we accept the case put forward by the FCO and the IC, that the information retained by the consultants was not held on behalf of the FCO. This conclusion is based on the nature of the relationship between the FCO and the consultants, including the applicable contractual terms.”
The above is an EIR case. However, a similar rationale applies in the context of FOIA.
Agency agreements with other bodies have similar implications. Agency is a relationship between two parties where one party (the ‘principal’) delegates powers or functions to another party (the ‘agent’) to act on their behalf. If you have an agency agreement in place, information relevant to a request might be held by your agent.
- You are delivering services or some of your objectives as a public authority through joint working, partnerships or consortia arrangements. These arrangements are types of agreement which set out the rights and responsibilities of each party for the delivery of a common goal. The arrangement may have its own name, branding and organisational structure. However, it will not necessarily give rise to a body with its own legal personality. Examples include:
- local strategic partnerships,
- road safety partnerships,
- local environment partnerships, and
- economic partnerships.
If all parties to the arrangement are public authorities for the purposes of FOIA, a request for information made to the body representing the partnership or consortium is in effect a request to all parties involved in the arrangement. In practice, this means that a designated point of contact takes the lead in collating the information and coordinating the response to the request. However, each party would need to establish what relevant information they hold. In this scenario, it helps clearly spelling out in the agreement what information is held by all parties and what information is held solely on behalf of one of the parties to the arrangement.
A county council sets up a road safety partnership with the county police and Highways England to implement measures aimed at reducing traffic accidents.
The partnership has its own website, branding and structure, including a Strategic Board.
The partnership receives a request for information about how many vehicles were checked by a speed camera van on road X.
The access to information team of the county council leads on gathering the information and responding to the request on behalf of the whole partnership.
In this scenario, it is likely that the county police is the relevant partner holding the requested information.
Having a good information management framework in place can help you establish what information you hold for the purposes of FOIA.
To meet the requirements of section 3(2), you need to know what information you are holding for your purposes as a public authority, what information you hold solely on behalf of another person and what information a third party is holding on your behalf.
Effective information and records management practices facilitate this.
When you work with third parties, you retain the legal responsibility for dealing with requests for information they hold on your behalf. In this context, you should ensure you have information sharing agreements in place. These agreements should include information rights obligations to enable you to easily have access and retrieve information relevant to the requests you receive.
The Secretary of State for Digital, Culture, Media and Sport issued a revised Code of Practice on the Management of Records in July 2021. This is sometimes referred to as the section 46 Code. The Code provides guidance to public authorities on good practice about the keeping, management and destruction of records. You should familiarise yourself with this document if you are unsure about how to best manage the information you are responsible for.
When seeking to establish if you hold the requested information, ensure you are thorough so as to identify and locate all the information within scope of a request. You must include in your searches any information relevant to the request that a third party holds on your behalf. In the event of a complaint to the ICO, you can be asked about the quality and rigour of your searches to determine whether you hold the information on the balance of probabilities.
Information held does not equal disclosure. However, before moving on to consider whether you can disclose or not, you must first ensure you have identified all relevant information within scope of a request.
Applicants are not necessarily familiar with the relevant legislation nor on how to best frame a request.
If an applicant has not sufficiently described the information or the request is unclear or too broad, section 16 requires you to provide advice and assistance to help them reframe the request more effectively.
If the applicant has requested information which you do not hold for the purposes of FOIA or which you hold solely on behalf of another person, explain this to the applicant rather than ignoring their request.
If you believe the information is held by another public authority, the 2018 FoI Code of Practice says it is good practice to inform the applicant of this and advise where they can redirect the request. If the applicant agrees, the Code says you can also transfer the request to the public authority you think holds the information.
Assisting applicants at an early stage can help you manage their expectations and is a good way to iron out any issues before they escalate into a complaint.
- Information you hold for the purposes of the EIR
- Section 16 – Advice and Assistance
- Outsourcing – FOIA and EIR obligations
- Official information held in non-corporate communications channels
- Determining whether we hold information | ICO
In addition to our guidance, we also recommend you take into account the following: