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To have and to hold

The question of when a public authority holds information for the purposes of the Freedom of Information Act is a complex one, particularly where contractors are involved. Ibrahim Hasan reviews recent developments in this area.

The Freedom of Information Act 2000 (FOI) gives everyone a right of access to information held by a public authority. But when is information held for the purposes of the Act? Section 3(2) states:

“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

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(b) It is held by another person on behalf of the Authority”

In June 2008 the British Union for the Abolition of Vivisection (BUAV) submitted a request to Newcastle University for the information set out in the project licenses, issued under the Animals (Scientific Procedures) Act 1986 (“ASPA”) which governed the primate research at the University which had been written up in three scientific papers published in 2006-2007. Amongst other things, the University argued that it did not hold the licenses. It said that they were held by the Named Veterinary Surgeon (employed by the University) pursuant to his statutory role under ASPA.

The Upper Tribunal has now upheld the decision of the First Tier Tribunal (Information Rights) (FTT) that the information was held by the University for FOI purposes (University of Newcastle v Information Commissioner and British Union for the Abolition of Vivisection (2011) UKUT (AAC)). It approved the reasoning of the FTT in respect of section 3(2) that the effect of this subsection is to confirm the inclusion of information within the scope of FOI, 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 section 1 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.

The Upper Tribunal stated that ‘hold’ is an ordinary English word; it is not used in some technical sense in the Act. Sophisticated legal analysis of its meaning is not required or appropriate. The question to ask is would an ordinary person consider the information to be held by the authority? In general, said the Upper Tribunal, authorities should base their cases on the exemptions rather than technical arguments as to whether the information was held.

Public authorities often enter into outsourcing and Private Finance Initiative (PFI) arrangements with the private sector to run services or deliver capital projects. These are often the subject of complex FOI requests for information. Sometimes the private sector will hold the requested information and the public authority will have access to it but on restricted terms. The question arises; is this information “held by another person on behalf of the Authority” as per section 3(2)(b)?

In a recent ruling by the First Tier Tribunal (Alan Dransfield v IC and Devon County Council (EA/2010/0152)) the appellant made a request for an Operations Maintenance Manual for a school which was built and maintained by a private company under a PFI arrangement with the council. The contract between the parties required the company to maintain and update the manual and give access, upon request, to the Council to demonstrate that it had complied with this obligation. The contract also contained a strict confidentially clause preventing the parties and their employees from disclosing anything within the contract and project documents.

The Council submitted that the Manual was not held by it but by the contractor and so was not subject to FOI. It was only entitled to access the Manual for the sole purpose of determining whether the contractor had complied with its obligations with respect to the compilation and maintenance of it. The Council had had no input into generating the information within it, no control over it and no right to disseminate it or deal with it in any other way.

The Tribunal agreed with these submissions. It ruled that the Council did not hold the requested information and has not held it at any relevant date and therefore it was not obliged to make it available to the Appellant under FOI. It noted though that after 2033 the position will change when the Council will have direct responsibility for the maintenance of the school and will have a full right of access to the Manual. It will then hold the information within it for FOI purposes.

This decision clarifies the question of applicability of FOI to information held by contractors under PFI arrangements. In any particular case though, care will have to be taken to examine the precise nature of the requested information, the basis upon which it is held and what rights of access the public authority has to it (and to disclose it further). Here the information concerned the record of operations and maintenance of the school which was part of the company’s internal procedures at this stage (having contractual responsibility for the maintenance of the school). The only access the Council needed to it was to ensure that it was being maintained and even then it was subject to a strict confidentiality clause. After 2033, as the Tribunal explained, when the contract ended it would need (and have) full access to the Manual and would therefore be holding the information within it under FOI.

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk).

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