FOI Man considers the complicated question of whether information is ‘held’ by a public authority.
Last week, Christopher Cook, writing in the Financial Times, revealed that an adviser to Michael Gove at the Department for Education had written to colleagues advising them to use private email accounts for correspondence rather than their DfE accounts. The ensuing scandal, nicknamed GoveGate – it’s not a scandal if it doesn’t have a ‘gate’ – has continued to preoccupy all of us FOI-geeks and many others besides. In the interests of balance, of course, I should remind readers that the DfE has denied that there was anything untoward going on, and stresses that the private email accounts were used for party political correspondence (it has also been pointed out to me since my last post on this subject that civil servants are not allowed to use Government email accounts for party political business, so they may be justified in this argument if this is the case).
Having heard something of Christopher’s methodology, however things work out, I’m impressed with his use of information law to bring us this story. But of course, it has brought into the spotlight the technical issue of whether information is “held” for the purposes of FOI.
This issue has made my head hurt a number of times over the years, and I’m sure other FOI Officers have found themselves in the same situation. The all important section of the Act is section 3(2):
“For the purposes of this Act, information is held by a public authority if –
(a) it is held by the public authority, otherwise than on behalf of another person, or
(b) it is held by another person on behalf of the authority.”
In theory, that sounds simple, but it isn’t. The arguments centre around whether or not information is being held “on behalf” of someone; or alternatively, whether the authority’s information is being held on its behalf by someone else (as is the allegation in the GoveGate story). A decision of the first-tier Tribunal (Information Rights) summarised the issue as follows:
“it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority.”
So in other words, Michael Gove and his friends can’t just hide from FOI by using private email accounts (or indeed, text messages) to discuss Government business. And similarly, public authorities can’t say they don’t hold records simply because they store them with private sector contractors off-site. Otherwise, we’d all be doing it with information we didn’t want to disclose. But then it gets complicated:
“Conversely, we consider that s1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority. For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk: that does not mean that the information is held by the authority. A Government Minister might bring some constituency papers into his departmental office: that does not mean that his department holds the information contained in his constituency papers.” (both extracts from British Union for the Abolition of Vivisection v Information Commissioner  UKFTT 525 (GRC) EA/2010/0064, para. 48)
The same decision (and the more recent Upper Tribunal decision upholding it) also refers to a common sense understanding of “held”. There is nothing about this stuff that justifies the phrase “common sense”.
One problem facing FOI Officers is that as the above illustrates, organisations physically hold information for many reasons – and in many cases it can be argued that they are holding it “on behalf” of another person or organisation. Politicians are a classic case. If you take a councillor in a local authority, they will carry out business records of which are definitely held by the authority – for example, attending committee meetings.
But they will also exchange emails with their party group on party political business, and attend minuted group meetings. Those records probably aren’t held (one of the very first FOI requests I turned down was for minutes of a party political meeting on this very basis). They will also, as are most public sector employees, be allowed to use council facilities for a small amount of personal business, eg using email to arrange drinks with a friend. That won’t be held either, unless…well, unless the drinks are to discuss council business – but how do you make that distinction (or even know)? And what about if the same councillor receives an email relating to the private business that they run and responds to it? Not held. And this doesn’t even take into account the fact that for many people these days, the divisions between work, social life, politics, and so on are blurring. People lead complicated lives and that makes FOI difficult to apply.
There are several other scenarios where the issue of ‘held’ is important. Several Information Commissioner and Tribunal cases have looked at whether an authority ‘holds’ information when the data is held but not in the format asked for. And recently, another Tribunal decision looked at whether an operations manual held by a PFI private sector partner relating to a school was ‘held’ by the County Council or the private company from an FOI perspective (it’s the private company until 2033).
The Information Commissioner, of course, provides guidance on “held”. In a few situations, I’ve found it useful. But more often than not, I have found that it doesn’t help with the specific situation that I’m looking at. Perhaps because even they have difficulty keeping up with all the potential situations where what is “held” is a relevant factor. In the BUAV v Information Commissioner Tribunal case referred to above (the one where they stated that we should adopt a “common sense” understanding of “held”), the Information Commissioner had ruled that the information wasn’t held. So even the Information Commissioner struggles with this.
The general rule that I tend to adopt is that if you’re carrying out authority business, the related information will be captured by FOI. But it isn’t always that simple. This is a complicated area of FOI law. And I haven’t even touched on the differing interpretation of the Environmental Information Regulations.