Information you hold for the purposes of FOIA

Example

In the First-tier Tribunal’s decision in the BUAV case, the Tribunal decided that the University held the information for the purposes of FOIA. The Upper Tribunal upheld this finding on appeal.

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].

Example

In Department of Health v Information Commissioner and Lewis ([2017] 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.”

Example

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.

Example

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.”

Example

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].

Example

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.

Example

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.

Example

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.

Example

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.”

Example

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].

Example

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.

Example

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.

Example

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.”

Example

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.