The Upper Tribunal has published its decision in the case of University of Newcastle upon Tyne v Information Commissioner and BUAV [2011] UKUT 185 (AAC). The case concerned requests by BUAV (the British Union for the Abolition of Vivisection) for information on licenses for animal experimentation issued under the Animal (Scientific Procedures) Act 1986 (ASPA). The University’s response was that it did not hold the requested information (rather, the information was held by individual researchers) and that, even if it did, the exemption under s. 44 FOIA applied, in that disclosure otherwise than under FOIA would involve the University committing an offence under s. 24 ASPA. The Tribunal disagreed, and found against the University on both points. The University’s appeal to the Upper Tribunal has failed on both points.

On the question of whether the University “held” the information for the purposes of s. 3(2) FOIA, the UT found that the present case was a straightforward application of the rules of attribution of knowledge to a corporate body. Reliance on the cases of McBride and Digby-Cameron did not assist the University: in both cases, the crucial issue was whether the information was held by the public authority “otherwise than on behalf of another person”, whereas the present case concerned the meaning of “hold”.

The UT’s analysis of the meaning of “holds” will have broad application to FOIA requests. UT Judge Wikeley approved the following passage from the Tribunal’s decision as a correct statement of the law:

“The effect of this subsection [s. 3(2) FOIA] 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 s.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 test is not whether the public authority “controls” or “possesses” or “owns” the information in question; simply whether it “holds” it. “Hold” is an ordinary English word and is not used in some technical sense in FOIA; it should not be re-defined or replaced, as to do so would risk distorting its ordinary meaning. The UT’s interpretation of “hold” means that, in general, public authorities should base their cases for refusal on exemptions rather than on arguments about whether they “held” the information for s. 3(2) purposes. See these statements from UT Judge Wikeley:

“A key feature of the FOIA regime is the need to balance the interests of the requester and the public interest in the free flow of information with the legitimate interests of public authorities and third parties.  Moreover, that balance is struck not by over-complicating the simple factual concept of whether information is “held” by a public authority – rather, it is achieved by the matrix of absolute and qualified exemptions and the application, where appropriate, of the public interest test.”

and

“I am reasonably confident that if the ordinary officious commuter on the Tyne & Wear Metro were presented with the scenario in the present case, their response would be along the lines of: “Has the University got the information BUAV requested? Of course it has. But presumably there may be some defences it can use so it doesn’t have to disclose some or all of it?””

Turning to s. 44(1)(a) FOIA, the UT noted the wording of the exemption and emphasised these words “if its disclosure (otherwise than under this Act) by the public authority holding it … is prohibited by or under any enactment”. It analysed s. 24(1) ASPA and asked itself whether the University (as opposed to any individuals) would not be committing an offence under that section if it disclosed this information otherwise than under FOIA. Its answer was no. The University therefore cannot rely on s. 44 in these circumstances, and will have to consider other exemptions if it wishes to withhold the information.

Robin Hopkins