MPs’ expenses: copies of receipts are subject to FOIA

Following the MPs’ expenses scandal, the then newly-founded Independent Parliamentary Standards Authority (IPSA) decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims.  Rather, only text transcribed from the submitted receipts was to be published.

The question that arose in IPSA v Information Commissioner (EA/2012/0242) was whether images of those receipts held by IPSA contained “information” within the meaning of section 1 of FOIA, which was not captured by the transcription process favoured by IPSA. In a decision handed down today, the First-Tier Tribunal held that those images do contain such information, and so dismissed IPSA’s appeal. The receipts in question related to claims made by John Bercow MP, Alan Keen MP and George Osborne MP in 2010, which were requested by Mr Brian Leapman of the Daily Telegraph (whose FOIA requests, together with those of others, had played a vital role in the exposure of the old system of MPs’ expenses). The decision is an unusual and interesting instance of the question of “what is information?” arising for consideration in the FOIA context.

Information is defined by section 84 of FOIA (“‘information’ (subject to sections 51(8) and 75(2)) means information recorded in any form”).  The tribunal concluded that, in this case, this definition included logos, letterheads, “handwriting/manuscript comments”, and “the layout and style/design of the requested documents” – each of which were not disclosed to Mr Leapman as a result of providing a transcription, rather than a copy, of the relevant receipts.  The tribunal rejected IPSA’s submission that those materials were “merely presentational”, and went on to consider further examples of information falling within section 1 of FOIA that could be of forensic value to a person investigating expenses claims by MPs:

“…a signature on an invoice may indicate fraud if it was identical to the claimant’s signature or that of a member of his team; a shoddily presented invoice may call into question the legitimacy of the company said to have issued it, or a letterhead or logo may have changed or be different to the one usually associated with a particular company – again bringing the legitimacy of the invoice into question.

The tribunal noted that IPSA insists on seeing actual receipts for its own purposes, and that the Chief Executive of IPSA had accepted in evidence that “sight of the receipt might be more informative”.

In arriving to the conclusions above, the tribunal rejected an attempt by IPSA to rely on section 11 of FOIA to justify the method by which it chose to disclose information to Mr Leapman. Section 11(4), permits a public authority to use a means of communicating requested information that is “reasonable in the circumstances”; and section 11(1) requires a public authority to give effect to a preference for a particular form of communication to the extent that it is “reasonably practicable”.  IPSA argued that for practical reasons it was not reasonable or reasonably practicable for it to fulfill Mr Leapman’s alleged preference for disclosure by a particular means of communication (see paragraph 14).

The tribunal found, however, that section 11 cannot operate to enable a public authority to limit the information which it is obliged to disclose.  Rather, the principle question for the tribunal was whether the disclosure by IPSA to Mr Leapman in fact conveyed all of the non-exempt information contained within the receipts.  As the answer to that question was “no”, it was not necessary for the tribunal to go on to consider the applicability of section 11.

Robin Hopkins appeared for the Information Commissioner; Philip Coppel QC appeared for IPSA.

Tom Ogg