Tag: information held

Academies and FOI

Posted on | by Robin Hopkins

The question of whether information is ‘held’ by a public authority for FOIA or EIR purposes can raise difficulties. This is especially so where the boundaries between public and private service provision are blurred: consider outsourcing, privatisation of services, public/private partnerships, joint ventures, the use of external consultants and so on. Legal separation and practical day-to-day realities can often point in different directions in terms of who holds information on whose behalf.

Geraldine Hackett v IC and United Learning Trust (EA/2012/0265) is a recent First-Tier Tribunal decision which addresses such issues – specifically in the context of academy school provision.

The United Church Schools Foundation Limited delivers schools through two separate trusts: the United Church Schools Trust (which runs 11 private schools) and the United Learning Trust (which runs 20 academies, and receives approximately £110k of its £129k of annual income from public funds).

Para 52A Schedule 1 FOIA brings within the scope of FOIA “the proprietor of an academy” but only in respect of “information held for the purposes of the proprietor’s functions under academy arrangements.”

Geraldine Hackett asked for information about the employment package of ULT’s chief executive (pay, pension contribution, expenses etc) and of the other members of the ULT senior management team.

ULT said it did not hold the information; the information was instead held by UCST (the private school provider). The ICO agreed. So did the First-Tier Tribunal, but this was overturned by the Upper Tribunal on account of aspects of procedural fairness which had gone badly awry at first instance.

On reconsideration by a fresh First-Tier Tribunal, the ICO’s decision was overturned. The Tribunal asked itself the questions which the Upper Tribunal had invited for consideration:

“Was it really the case that ULT had delegated day-to-day running of its charitable activities to a chief executive of whose duties under his contract of employment, ULT was ignorant? Was it permissible to avoid FOIA by the device of a contract of employment made by another body?”

It applied the leading case of University of Newcastle upon Tyne v ICO and BUAV [2011] UKUT 185 (AAC) and concluded that ULT did hold the requested information for FOIA purposes. This meant that “ULT would fulfil its obligations under FOIA by disclosing not the total sums involved but that proportion, calculated in accordance with the agreement, which relates to the academies; in other words excluding that proportion which can be attributed to USCT’s private schools.”

The Tribunal noted that “in 2006 both trusts entered into an agreement with each other to apportion the expenditure on shared services” and observed that “it appeared to us from the oral and written evidence that staff work together seamlessly for all three trusts”.

Those who grapple with held/not held questions in contexts like this will wish to note the key paragraph (19) illuminating the Tribunal’s reasoning:

“We were told at the hearing, and we accept, that the disputed information is held in hard copy in one of the filing cabinets at the United Learning Head Office. Those with access to it work seamlessly, we have found, for all three trusts. They have responsibilities to all three trusts. For these purposes, we are not attracted by artificial theories suggesting that staff hold these documents only on behalf of one or two of the trusts. Looking at actualities, and applying the plain words of the statute, in our judgment the disputed information is held by ULT, even if it is also held by UCST and UCSF. This finding is consistent with the obligations of the ULT accounting officer in respect of senior officers’ payroll arrangements…”

Robin Hopkins @hopkinsrobin

PRIVATE EMAILS AND TEXTS SUBJECT TO FOIA

Posted on | by Robin Hopkins

Following the emergence earlier this year that Department for Education officials had, apparently routinely, used personal email accounts for the conducting of official business, the ICO has considered this issue. It has today issued guidance that many FOI officers and lawyers will find notable, to say the least.

The key points:

  • FOIA applies to official information held in private email accounts when held on behalf of the public authority. So too text messages. This much is obvious from the definition of ‘held’ in s. 3 of FOIA. The question is exactly what this means, and what to do about it.
  • There will be occasions on which, having searched its own systems, the public authority will be expected to ask employees (or contractors etc) to search their personal email accounts/text messages for information described in a FOIA request.
  • The ICO expects such occasions to be ‘rare’. I think this means that the ICO will not expect the public authority to do so simply because a requester asks it to; something more will be required.
  • What is that ‘something more’? The ICO recommends public authorities look out for ‘relevant factors’ which may trigger the duty to ask.
  • These factors include the nature, wording and subject matter of the request.
  • They also include “how the issues to which the request relates have been handled within the public authority”. This may be another way of asking: is the public authority aware that this sort of thing has been going on?
  • Another relevant factor is “by whom and to whom the information was sent and in what capacity, e.g. public servant or political party member”. This is often a blurred line, one imagines. Not sure how this could be scrutinised (other than hacking into private systems, which is not nice, not fashionable and not legal).
  • Public authorities should establish procedures for dealing with such situations.
  • They should keep records of any private email account/text message searches they have requested.
  • Public authorities should remind staff that, where a request for information to which the requester would be entitled has been made, it is a criminal offence to erase or conceal that information with the intention of preventing disclosure (see s. 77 of FOIA).
  • ‘Concealment’ would include denying that anything of an ‘official capacity’ nature is (or, at the time of the request, was) in one’s private email inbox or text message folder.
  • Public authorities should tell their employees not to use private channels for official business in the first place.

Panopticon understands from some of its friends in the media that requests aiming at exactly this sort of information were fired off this morning (or earlier this week, in anticipation of the new ICO line).

Meanwhile, a decision on the complaint against the Department for Education is in the pipeline.

Panopticon will be keeping its Benthamite eye on how these matters unfold.

Robin Hopkins