EIR: when is information ‘held’?

One of the issues which commonly arises for information law practitioners is the question, which arises under both FOIA and the EIR, of whether a public authority actually holds the information which has been requested. The leading case on section 1(1) FOIA is University of Newcastle v IC & British Union for the Abolition of Vivisection [2011] UKUT 185 (AAC), [2011] 2 Info LR 54 and substantially the same approach has been adopted in, for example, Keiller v IC and University of East Anglia [2012] 1 Info LR 128 and Clyne v IC & London Borough of Lambeth [2012] 2 Info LR 24 in relation to regulation 3(2) EIR. What is required is a common-sense and non-technical approach. That, of course, is easier stated than applied.

The issue arose again in Holland v IC & University of East Anglia (EA/2012/0098). Like Keiller, this case was concerned with the Climatic Research Unit (“CRU”) at UEA, the source of the so-called ‘Climategate’ controversy. Readers will recall that in November 2009 there was an unauthorised disclosure of a large number of emails concerning work undertaken at the CRU. The ensuing controversy led the university to set up the Independent Climate Change E-mail Review (“ICCER”) chaired by Sir Muir Russell, which reported in 2010.

Mr Holland, who had made a submission to the ICCER, requested “copies of all of the information held” by it. A lot of information had been published on the ICCER’s own website, and essentially what remained, the tribunal found, was the Review’s “working papers”. It seems not to have been in issue that they were in the physical possession of Sir Muir Russell or his solicitors and not UEA. The issue was, therefore, whether the information was held ‘on behalf of’ UEA for EIR purposes. The Commissioner thought not, and the tribunal agreed with him.

Directing itself by reference to BUAV as well as a number of other FTT decisions, the Tribunal decided that it needed first to examine the nature of the legal and practical relationship between UEA and the ICCER/Sir Muir Russell. It found that the inquiry could have been conducted internally, but that UEA had decided to externalise it not, as Mr Holland had argued, in order to avoid its obligations under FOIA and the EIR, but “at a time when UEA’s credibility was very much at stake, in order to inspire confidence in the independence of the findings” (para 104). It went on to find that there was nothing in the EIR, nor in the Aarhus Convention, which prevents public bodies from externalising functions or which means that environmental information thereby created is necessarily held by the public body (para 105). Although there was no written document evidencing a contract between Sir Muir and UEA, the Tribunal found that a contract did exist (para 108). It did, however, express considerable surprise at the absence of a written contract and of the fact that “there was no discussion … about the information that would be received or generated by the ICCER” (para 110). Nevertheless, the Tribunal accepted that both parties had proceeded on the assumption that UEA would have no claim to or be able to access the information and that it would be held by the ICCER on its own behalf (para 114).

The Tribunal went on to hold that there was no other sense in which the ICCER was beholden to UEA or in which its independence was compromised. It was not, as Mr Holland had argued, merely a ‘sham’: “we do not find it likely that [UEA] would have compounded its problems so greatly, and risked its credibility so completely, by setting up an inquiry that was independent in name only” (para 116). Neither the involvement of a Professor Boulton on the Review panel (who had previously worked for UEA) nor the decision not to publish the Appellant’s submission in full affected the fundamental independence of the ICCER (paras 117-118). It followed that the information requested was not held ‘on behalf of’ UEA and the appeal therefore failed. Interestingly, the Tribunal did perhaps give some succour to Mr Holland by saying in para 122 “It may be that the information should be held by the UEA and there may be good reason why, barring anything provided in confidence, the information should be passed to the UEA to form part of its historical records. Were that to happen, then in the future, the information may be held by the UEA.” Leaving aside the question-begging first sentence (why, in EIR terms, ‘should’ UEA hold this information?), the second sentence is an important reminder that the answer to the question of whether information is held is one which is liable to change over time and with circumstances.

Edd Capewell