AGGREGATION UNDER S. 12 FOIA: STICK TO THE STATUTORY TEST

October 11th, 2011 by Robin Hopkins

In Benson v IC and the Governing Body of Buckinghamshire New University (EA/2011/0016), the public authority relied upon s. 12 FOIA (cost of compliance) in refusing the multi-part request. In so doing, it aggregated the requests, i.e. it looked at the cost of complying with all parts of the request cumulatively, rather than on a part-by-part basis. Regulation 5(1) of the 2004 Fees Regulations allows for the aggregation of requests where two or more requests made by or on behalf of the same person within a 60-day period “relate, to any extent, to the same or similar information”. The Commissioner agreed with the public authority. He referred to Fitzsimmons v IC and DCMS (EA/2007/0124), where the Tribunal had emphasised the width of the test for aggregation (“to any extent”; “same or similar”).

The Commissioner also took the view that requests were similar where there was an “overarching theme” or “common thread” running between them in terms of the nature of the information requested.

The Tribunal allowed Mr Benson’s appeal. Much turned, of course, on the specific facts. But those who encounter or apply s. 12 FOIA will wish to note the following more general observations (see paragraph 29).

First, tests such as “overarching theme” or “common thread” were, in the Tribunal’s view, not compelling, because they raised concepts not used in the legislation itself.

Secondly, any consequent uncertainty should be resolved in the requester’s favour (though it is not immediately clear whether this last point was intended to be case-specific or more general).

Robin Hopkins

 

PUBLIC AUTHORITY

October 3rd, 2011 by James Goudie QC

The Irish Commissioner for Environmental Information, Emily O’Reilly, on 30 September 2011 ruled that Anglo Irish Bank is subject to requests from the public relating to the environment, on the basis that for environmental information purposes the Bank, which was nationalised in January 2009, is a public authority.  The Bank had, under the European Communities (Access to Information on the Environment) Regulations 2007, refused requests relating to matters such as travel expenses and properties on the basis that it is a company, as indeed it is.  The Bank argued that it is not a public body, even though all its shares are held by the Minister of Finance.  The Commissioner, Case CEI/10/0007, disagreed.  The Bank can appeal to the High Court.

A company in which all the shares are directly held by a Minister of the Government is not amongst the entities specifically listed in EU Directive 2003/4/EC or the Aarhus Convention, but is specifically listed in the Irish Regulations, on their plain and ordinary reading.  The Commissioner ruled that the meaning of the Irish Regulations is clear and unambiguous, without any further conditions applying as to public administrative functions and responsibilities.  Nor did she regard this as being at odds with the Directive.  On the contrary she said that “it is very arguable that the Directive, in particular Recitals (11) and (24), encourages and enables Member States to take an expansive approach” to what constitutes a “public authority”.   (The same can be said of the Aarhus Convention, in particular Article 2.2.)  She did not accept that the definition of “public authority” in the Irish Regulations should be interpreted restrictively where a Member State has apparently chosen to take an expansive approach to the definition.

In the UK under FoIA and the Environmental Information Regulations 2004, and their Scottish equivalents, a company which has no members other than a Minister of the Crown (including a Northern Ireland Minister) is a public authority.  No doubt a UK Court would agree that this is not at odds with the Directive, either as being in accordance with it or as being a legitimate expansion of it (and, in the case of the Environmental Information Regulations, made under the European Communities Act 1972, intra vires).