Latest updates - last updated 30 September 2022
30 September 2022 - We have updated this guidance to clarify how Scottish companies, which are owned by public authorities based elsewhere in the UK, are covered by FOIA. We have also clarified the possible FOI obligations of membership organisations and partnership agreements. Both updates can be found in the section "How are publicly-owned companies covered by FOIA?".
About this detailed guidance
This guidance is written for use by public bodies and offices who are unsure if they are a public authority for the purposes of the Freedom of Information Act 2000 (FOIA). For some public bodies and offices, it is straightforward as to whether they are a public authority. However, some parts of this definition are more complex.
You should read this guidance if you need a deeper understanding of how the definition of a public authority in FOIA can apply to you.
This guidance is only relevant to non-environmental information that you hold. If you receive a request for environmental information, you need to consider whether you are a public authority under the Environmental Information Regulations 2004 (EIR). You may be still be a public authority under the EIR even if you are not a public authority for the purposes of FOIA.
- What does FOIA say?
- Who is a public authority under Schedule 1?
- How are publicly-owned companies covered by FOIA?
- How are bodies added to and removed from FOIA?
- Are some bodies only partly covered by FOIA?
- What are our responsibilities?
FOIA gives people the right to access information that public authorities hold. The legislation has a wide application across the public sector at national, regional and local level. Given the number of bodies and offices that fall within the scope of FOIA, it is not feasible to list them individually. Therefore, the legislation designates public authorities as follows:
3 Public authorities
(1) In this Act “public authority” means—
(a) subject to section 4(4), any body which, any other person who, or the holder of any office which—
(i) is listed in Schedule 1, or
(ii) is designated by order under section 5, or
(b) a publicly-owned company as defined by section 6.
6 Publicly-owned companies
(1) A company is a “publicly-owned company” for the purposes of section 3(1)(b) if—
(a) it is wholly owned by the Crown,
(b) it is wholly owned by the wider public sector, or
(c) it is wholly owned by the Crown and the wider public sector.
This means that there are four ways in which you can be designated as a public authority:
You are listed in Schedule 1 of FOIA or fall within a generic description of public authorities in the Schedule.
- You are added to the Schedule by an order under section 4(1) of FOIA, if you meet certain specified conditions.
- You are added to the Schedule by an order under section 5 of FOIA, when you meet certain criteria.
- You meet the definition of a publicly-owned company in section 6 of FOIA.
Schedule 1 sets out the bodies or holders of office that are public authorities under FOIA. They are listed under broad categories, which are:
- government departments, legislative bodies and the armed forces;
- local government;
- National Health Service (NHS);
- maintained schools, academy schools and further and higher education institutions;
- police; and
- other public bodies and offices, which includes a list of individually named non-departmental public bodies.
Schedule 1 deliberately uses generic descriptions to ensure the legislation’s wide application. As a result, the Schedule does not need to specifically mention every organisation classed as a public authority under FOIA. This means that, if you fit within one of the above descriptions, then it is likely that you are a public authority for the purposes of FOIA.
For example, Schedule 1 lists a wide range of bodies under the ‘local government’ category. These include:
- principal councils;
- parish councils;
- fire and rescue authorities; and
- passenger transport executives.
Any body that fits within these descriptions is a public authority for the purposes of FOIA.
Similarly, for the NHS, Schedule 1 includes general descriptions of the types of body falling within this category. These include:
- local health boards; and
- clinical commissioning groups.
Subject to certain conditions, Schedule 1 lists anyone providing primary or general medical, dental, pharmaceutical and ophthalmic services. For the purposes of FOIA, bodies providing health services under NHS contracts which fall under these descriptions are also considered public authorities.
In decision notice FS50835478, the applicant sought a range of information from Pharmacy2U (P2U) about their provision of medicines through the Electronic Prescription Service (EPS). The EPS is an NHS service which allows GP practices to send electronic prescriptions to pharmacies. The information included details of P2U’s risk management and audit of their provision of medicines through EPS.
P2U refused to provide the information on the basis that they were only covered by FOIA in relation to pharmaceutical services provided under the National Health Service Act 2006. They argued that the requested information was not sufficiently linked to their provision of NHS pharmacy services. Consequently, the right of access under FOIA did not apply.
The Commissioner found identifying and managing the risks associated with EPS was a generally accepted standard that P2U was required to follow under the National Health Service Act 2006. Therefore, the Commissioner decided that P2U was a public authority for the purposes of FOIA for such information.
Schedule 1 may not list an organisation in the way you expect. For example, within the education sector, the school itself is not the public authority. That falls to the governing body of a school, further education institution or university.
Furthermore, Schedule 1, Part VI lists ‘other public authorities’ according to their legal name. For example, it lists the Parliamentary and Health Service Ombudsman (PHSO) under their two different roles (as the Parliamentary Commissioner for Administration and the Health Service Commissioner for England).
The definition of government departments is not limited to ministerial departments such as the Department for Education or the Home Office. Section 84 of FOIA states that the term includes Northern Ireland departments and any body exercising statutory functions on behalf of the Crown. Therefore, the term ‘government departments’ extends to:
- non-ministerial departments headed by civil servants and which usually have a regulatory or inspection function, such as Crown Prosecution Service, HM Revenue & Customs and Ofsted; and
- non-departmental public bodies, ie all those bodies which operate at arm’s length from ministers, albeit having a role in the process of national government, such as the Advisory, Conciliation and Arbitration Service (ACAS) and the British Council.
The term ‘government department’ also includes executive agencies established to carry out specific executive functions. Examples of executive agencies include the Crown Commercial Service, the Planning Inspectorate and the Driver and Vehicle Licensing Agency (DVLA).
If you are an executive agency, your parent department is responsible for dealing with requests for information that you receive. They are the public authority for the purposes of FOIA. This is because, although administratively distinct, executive agencies usually have no independent legal status of their own. If you are an executive agency and you have your own staff who handle information requests, you can deal with information requests directly. If you do not have an information access team, it is particularly important that you train your staff to recognise information access requests. They can then promptly redirect them to the relevant staff in the parent department.
Section 84 of FOIA excludes certain bodies from the scope of Schedule 1, even though they are exercising functions on behalf of the Crown. For example, bodies such as the Security Service, the Secret Intelligence Service and the Government Communications Headquarters are excluded.
Section 3(1)(b) of FOIA states that a publicly-owned company as defined by section 6 is a public authority for the purposes of FOIA. A company is ‘publicly-owned’ if it is wholly owned by:
- the Crown;
- the wider public sector; or
- the Crown and the wider public sector.
This is the only category of public authority that is subject to FOIA without any specific reference in Schedule 1. There is also no subsequent ministerial order introducing additions to the Schedule or designating new public authorities.
Companies wholly owned by the Crown
A company is wholly owned by the Crown when every member of it is:
- a minister of the Crown;
- a government department; or
- a company wholly owned by the Crown.
This means that any company that is wholly owned by a single government department qualifies as a company wholly owned by the Crown. Therefore, they are a publicly-owned company. It also means that two or more government departments may share the ownership of a company without affecting the company’s status as wholly owned by the Crown.
Examples of companies that are wholly owned by the Crown include:
- Northern Ireland Water (sole shareholder the Department for Regional Development);
- Ordnance Survey (sole shareholder the Department for Business, Energy and Industrial Strategy); and
- CDC Group Plc (sole shareholder the Foreign, Commonwealth and Development Office).
Companies wholly owned by the wider public sector
The ‘wider public sector’ owns a company when every member is a 'relevant public authority” or a company also owned by the ‘wider public sector’. This means that subsidiary companies of public authorities can fall within the definition of a publicly-owned company.
The term “relevant public authority” is defined in section 6(3) in FOIA as any public authority listed in Schedule 1, other than:
- a government department; or
- any authority which is listed only in relation to particular information.
A government department is not considered to be a “relevant public authority”. This is because any company solely owned by a government department is also wholly owned by the Crown.
The definition of “relevant public authority” means that, if Schedule 1 of FOIA lists any one of the shareholders of a company in relation to particular information, that shareholder is not a relevant public authority. As a result, the company would not qualify as a publicly owned company.
The BBC is listed in Schedule 1 of FOIA as a public authority “in respect of information held for purposes other than those of journalism, art or literature.”
Because the BBC is listed in Schedule 1 only in respect to certain information, it does not qualify as a relevant public authority for the purpose of section 6(2)(b). This means that any company that is owned, or partly owned by the BBC alongside relevant public authorities, is not a public authority for FOIA.
Companies wholly owned by the Crown and the wider public sector
Companies are still considered to be publicly owned when the ownership is shared between the Crown and the wider public sector.
Examples of publicly-owned companies
There are relatively few Crown-owned companies. However, there are a wide range of companies that are potentially owned by wider public sector. For example, in the local government and higher education sectors, public authorities may set up companies for which there will be public authorities.
- Higher education
Universities often establish companies. This is usually to benefit commercially from their intellectual property, technological expertise and research. An example is Cambridge Enterprise Limited, where the University of Cambridge is the sole shareholder.
- Local government
Public authorities may set up companies in the local government sector, usually to provide specific public services.
Transport for London (TfL) is an example which also shows how section 6 brings subsidiary companies within the definition of a publicly-owned company:
- TfL is listed as a public authority in its own right in the local government section of Schedule 1.
- TfL has three subsidiary companies, which, as they are wholly owned by TfL, are also public authorities in their own right by virtue of section 6.
- One of these subsidiaries, Transport Trading Limited (TTL), is a holding company. They wholly own all of their subsidiary transport companies. These include London Underground Limited and Docklands Light Railway Limited. By virtue of section 6(2)(b)(ii), TTL’s subsidiaries are also public authorities.
Sometimes local authorities set up companies in the area of facilities management, economic development and waste disposal. For example:
- Wigan Metropolitan Development Company Limited is wholly owned by Wigan Council. They established it in order to promote economic development and investment within the council’s area;
- Totally Local Company is wholly owned by Stockport Council. They provide a range of services, including building and grounds maintenance, environmental services and catering; and
- Yorwaste Limited is wholly owned by Yorkshire County Council and City of York Council. They provide waste management services in the area.
Sometimes public authorities choose to deliver public services together by entering into joint or partnership agreements, rather than setting up a company. The arrangement or partnership may have its own name and branding but is not the same as a publicly owned company, which is a public authority in its own right. The public authorities involved in that delivery arrangement remain responsible for handling FOI requests.
A joint or partnership agreement is not the same as public authorities joining a membership association to receive certain services. Whether a particular membership organisation is subject to FOIA depends upon whether it is a public authority, in one of the four ways set out above.
The most common example of a publicly-owned company in the local government sector is an arm’s length management organisation (ALMO). These are usually set up by a local authority to manage their housing stock. An ALMO is usually set up as a company limited by guarantee, with the local authority as the sole member or guarantor. In this way, the ALMO falls within the meaning of a publicly-owned company as defined by section 6(2)(b)(i). For example, Six Town Housing is an ALMO set up to manage the housing stock of Bury Council.
An ALMO is different to arm’s length trading organisations (ALTOs). These operate separately, with their own governance and management arrangements. However, they remain part of the public authority.
Scottish companies owned by public authorities based elsewhere in the UK
You are a public authority for the purposes of FOIA if you are a company registered in Scotland but you are fully owned by a public authority in England, Wales or Northern Ireland, or covering the whole of the UK for the purposes of FOIA. This is rather than being a public authority for the purposes of The Freedom of Information (Scotland) Act 2002 (FOISA).
Section 6 of FOISA states that, to be a Scottish public authority, you need to be wholly owned by a public authority named at Schedule 1 of FOISA.
For example, Dounreay Site Restoration Ltd (DSRL) is a wholly owned subsidiary of the Nuclear Decommissioning Authority (NDA). Although DSRL is registered in Scotland, the NDA is listed in Schedule 1 of FOIA, and therefore DSRL is a public authority under FOIA and not FOISA.
Amendments to Schedule 1
Schedule 1 is regularly updated as new public authorities are created or cease to exist. The Cabinet Office is responsible for updating Schedule 1. They update the Schedule in a number of ways:
- by order under section 4, whereby the Secretary of State or Minister for the Cabinet Office can add bodies or holders of office that meet the necessary two conditions:
- the body or office is established by HM prerogative or by legislation, or in any other way by a Minister of the Crown, government department or the Welsh Assembly Government; or
- the body or office is appointed by the Crown, a Minister of the Crown, a government department or the Welsh Assembly Government.
- additions as a result of provisions in other primary or secondary legislation. For example, the Domestic Abuse Act 2021 added The Domestic Abuse Commissioner, and the Trade Act 2021 added the Trade Remedies Authority; and
- removals, where either of the two necessary conditions for inclusion under section 4 are no longer satisfied or as a result of the body or office ceasing to exist (Sections 4(4) and 4(5)).
- by order under section 4, whereby the Secretary of State or Minister for the Cabinet Office can add bodies or holders of office that meet the necessary two conditions:
Not all new bodies need adding to Schedule 1. This is because they may be constituted in such a way that would already bring them within one of the general definitions in the Schedule or because they fall within section 6 of FOIA. For example, the Department for Exiting the European Union, established in July 2016, was a new body. However as a government department it was, by default, a public authority under Schedule 1.
Only bodies that do not meet the general definitions of public authorities in Schedule 1, but do meet the necessary conditions above, are added by a section 4 order. For example, in 2018 a section 4 order added, among others, the British Film Institute, Housing Ombudsman and Surveillance Camera Commissioner.
If a body no longer satisfies the conditions set out in section 4, then it is no longer a public authority for the purposes of FOIA. It does not matter if it is still listed in parts VI and VII of FOIA (‘Other public authorities and offices’).
You should also be aware that if your constitution changes then you may no longer be a public authority. Conversely, such changes may bring you into the scope of FOIA.
In the First-tier Tribunal case EA/2021/0129 the applicant argued that the Judicial College, which was not listed in Schedule 1, was a public authority. This was on the basis that its predecessor body, the Judicial Studies Board, was listed and that the two bodies fulfilled the same functions.
The Tribunal found that although the Judicial College fulfilled the same functions and operated the same structure as the Judicial Studies Board, they were nevertheless separate bodies. Therefore, despite the similarities of the roles undertaken by them, the Tribunal did not accept that the Judicial College was a public authority because its predecessor body the Judicial Studies Board was listed in Schedule 1 of FOIA.
Designation as public authorities
Even when a body cannot be added to Schedule 1 by an order under section 4 because they do not meet the necessary conditions, they can still be brought under the scope of FOIA. Under section 5 of FOIA, the Secretary of State or the Minister for the Cabinet Office can, by order, designate bodies as public authorities. These are bodies that are exercising functions of a public nature or who are providing, under contract with a public authority, any service whose provision is a function of that authority.
Examples of bodies designated as public authorities under section 5 as they exercise functions of a public nature include:
- the Universities and Colleges Admissions Service (UCAS);
- the Financial Ombudsman Service (FOS); and
- the National Police Chiefs’ Council (NPCC).
However, these bodies are public authorities only in respect to certain functions.
Bodies designated as public authorities under section 5 of FOIA are not listed in Schedule 1.
When public authorities contract out services to third parties, even if such parties are not public authorities in their own right, they may hold information on behalf of the contracting public authority. Under section 3 of FOIA, the contracting public authority may hold such information for the purposes of FOIA.
As mentioned above in the context of publicly-owned companies, some bodies are only covered by FOIA for certain purposes or in relation to information they hold for certain functions. Section 7 of FOIA gives details of the provisions of the legislation that apply to these public authorities.
The way in which a body is only partially covered by FOIA can vary. For example:
- a body is listed in Schedule 1 only in respect of information of a certain specified description;
- a public authority which is added to Schedule 1 by an order under section 4 may be listed only in relation to information of a specified description;
- the Secretary of State or Minister for the Cabinet Office can change the scope of an existing entry in Schedule 1; or
- an order designating an organisation as a public authority under section 5 must specify the functions of that authority in respect of which the designation is to have effect.
The wording of these limited applications varies. For example:
- the BBC is a public authority “in respect of information held for purposes other than those of journalism, art or literature”;
- the Competition and Markets Authority is a public authority “in relation to information held by it otherwise than as a tribunal”;
- both Houses of Parliament are public authorities “in respect of information other than” certain types of information concerning members’ expenses; and
- The Financial Ombudsman Service is only a public authority in relation to the provision of the administration of an ombudsman scheme in accordance with certain parts of the Financial Services and Markets Act 2000.
Certain categories of public authority also have limited coverage. For example, various health providers such as GPs, opticians and dentists are only covered for information about the provision of specific services under specific NHS legislation.
You should interpret the designation of a public authority under FOIA broadly, yet with care and precision. The comments of the Upper Tribunal in the following decision illustrate this point.
In UCAS v the Information Commissioner and Lord Lucas  UKUT 0557 (AAC) (GIA/1646/2014), the Upper Tribunal considered the designation of UCAS by an Order under FOIA in respect of specific functions. These were namely the provision and maintenance of a central applications and admissions service in respect of universities and further education colleges. It rejected UCAS’ arguments that its designation should be interpreted narrowly, similarly to the BBC’s.
The Upper Tribunal stated: “The starting point of the two bodies was fundamentally different in that the BBC is designated as a public authority in relation to all of its functions, except those exempted by the wording of its designation in Schedule 1 to FOIA. UCAS, by contrast, is not designated as a public authority generally, but only for the function(s) included by the specific wording in the Designation Order.”
On the Designation Order, the Upper Tribunal commented: “The primary aim of the Order was surely to ensure that bodies of whatever formal legal status that exercise functions of a public nature are subject to the same degree of scrutiny under FOIA as ‘ordinary’ public authorities in relation to those functions and as a result become more open, transparent and accountable. The non-designation of UCAS’ other functions (eg commercial functions) is necessarily a secondary purpose of the Designation Order. In those circumstances it seems to me that the golden thread I have referred to must carry the day in terms of mandating a liberal construction of the legislative provisions in issue.”
Although the extent to which partly covered bodies are subject to FOIA is limited, they are still public authorities. Therefore, the Commissioner can issue decision notices to such bodies to confirm whether they hold the requested information for the purposes of the legislation.
In decision notice IC-80666-W4F2 the applicant submitted a request to the BBC. They were seeking a breakdown of the £261m the BBC’s annual report stated they had spent on the World Service operating licence in 2020.
The BBC argued that the information was not caught by FOIA because they held it for the purposes of “art, journalism or literature”.
The BBC’s reasoning was that information relating to how the World Service budget is spent is an editorial matter. This is because decisions on a given piece of journalistic output involve editorial judgement about the content and the costs involved. The BBC further explained that any decision taken on spend has a direct impact on the creative scope for programmes. This is because more money spent on one area or one programme means less available for another.
The Commissioner accepted that such decisions would relate to editorial decisions in respect of the BBC’s journalism. Therefore, the Commissioner concluded that the requested information was not covered by FOIA.
You are responsible for identifying whether your organisation falls within one of the definitions of a public authority for the purposes of FOIA. In particular, you should be conscious that Schedule 1 does not list all organisations subject to FOIA.
Firstly, for many sectors, Schedule 1 only includes general descriptions of the types of organisations that are covered by FOIA. It does not list individual bodies by name. Secondly, being listed in Schedule 1 is not the only way in which FOIA could define you as a public authority.
If you are not aware of your status as a public authority, you are at risk of being unable to comply with your legal requirements. For example, maintaining an adequate publication scheme or responding to requests within the statutory timeframes required.
A publicly-owned company under FOIA is a public authority in its own right. They have the same responsibilities as any other public authority in complying with the legislation. If you are a public authority ‘owning’ a company meeting the requirements in section 6, you should raise awareness of these responsibilities with the companies concerned.
For further information read our guidance on: