Line to take - LTT85 - Held otherwise than on behalf of

• FOI/EIR: FOI, EIR
• Section/Regulation: s3(2)(a), reg 3
• Issue: Held otherwise than on behalf of
• Source: Policy Team, Information Tribunal
• Details Ennis McBride / MOJ (formerly the Privy Council Office); Digby-Cameron / IC
• Related Lines to Take: n/a
• Related Documents: Awareness Guidance 12, EA/2007/0105 (McBride), EA/2008/0010 (Digby-Cameron)
• Contact: LA/HD/GF
• Date: 05/01/2009
• Policy Reference: LTT85
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Under FOIA, where information is held by a public authority to any extent for its own purposes, then even if it is also holding that information for someone else, it is nevertheless holding the information for the purpose of the Act. Under the EIR information is held if it is in the possession of the public authority.

Further Information

FOI

Section 3(2) of the FOIA provides that

“For the purposes of this Act, information is held by a public authority if—

• it is held by the authority, otherwise than on behalf of another person, or
• it is held by another person on behalf of the authority”

Where information is held by a public authority, to any extent for its own purposes, then it holds that information otherwise than on behalf of another person, and therefore it holds the information for the purposes of the Act.

The only circumstance in which information would not be held by a public authority by virtue of section 3(2)(a) would be where information is only held on behalf of another person, and is not held to any extent for that public authority’s own purposes.

Examples of this might be:

• Where a public authority provides a storage facility for another public authority during an office move.
• Where an IT Contractor provides IT support for a public authority from that public authority’s premises, and so uses the public authority’s storage space (either physical or IT systems) for its own information. In such circumstances although the public authority might be said to physically hold information it would only hold it on behalf of another person and so s3(2)(a) would apply.
• Where an elected councillor uses council computer and office facilities for his constituency business.

This has always been the Commissioner’s view as is reflected in our Awareness Guidance 12. An alternative argument would be that the wording of s3(2)(a) contemplates two mutually exclusive situations; those in which information is held by the public authority, and those in which information is held by it on behalf of another person. However, the Commissioner does not accept that s3(2)(a) must be read in this way.

In practice it will often be the case that a public authority holds information partly for its own purposes and partly on behalf of another person. In this situation, because the information is held in part otherwise than on behalf of another person then in the Commissioner’s view it is held for the purpose of the Act.

A public authority that receives a request will be responsible for responding to that request. If the information is held partly on its own behalf and partly on behalf of another person then, whilst the public authority may wish to consult with the other person before providing a response, it still retains the responsibility for responding.

If the “other person” is another public authority, and separate but identical requests are sent to both authorities, then both will have a duty to respond under FOIA. This could mean two responses relating to the same information being provided by two different public authorities in response to the two separate requests. Again the public authorities concerned may wish to confer before responding.

Where a public authority holds information only on behalf of another person, and thus does not hold it for the purposes of the Act, then its duty under section 1 will be to advise the applicant that it does not hold the information. If it is holding the information only on behalf of another public authority then, in accordance with Part Ill of the section 45 code of practice, it should also consider transferring the request or directing the applicant to the appropriate public authority.

Ennis McBride & the Ministry of Justice (formerly the Privy Council Office (‘PCO’))

In this case, the applicant requested information from the PCO relating to the ‘Visitor’ of the University of London. The Visitor’s role is to determine disputes arising between the University and its members, e.g. students who were dissatisfied with their teaching. The PCO maintained that some of the information requested was held by them on behalf of the Visitor and therefore, by virtue of section 3(2), it was not subject to the Act. The Commissioner upheld this decision.

The Tribunal found that the PCO “...performed all the administrative and management functions in relation to the office of Visitor....” and set out at paragraph 28 full details of these functions. These circumstances allowed the Tribunal to conclude that “...we are entirely satisfied that the PCO held the information on its own behalf...” (para 31) although they did comment that whether a public authority holds information on behalf of another is:

“...not an issue that turns on who owns the information, nor on whether the PCO has exclusive rights to it, nor indeed on whether there is any statutory or other legal basis for the PCO to hold the information. Rather, the question of whether a public authority holds information on behalf of another is simply a question of fact, to be determined on the evidence ...“ (para.27).

Digby-Cameron v Information Commissioner

In this case, the applicant requested a transcript of a hearing concerning the death of his son from Hertfordshire Coroner’s Service, the administration of which is run by Hertfordshire County Council. The Coroner’s Service is not a public authority for the purposes of FOIA. The Tribunal referenced the McBride v Information Commissioner case above and in light of this, considered the relationship between the Council and the Coroner, and whether the Coroner can be said to control the information:

“The Tribunal has regard to the entirely separate information regime that is set out in the Coroner’s Rules 1984. The Tribunal noted first that it is the Coroner’s statutory duty under rule 56 to retain inquest documents for at least fifteen years. It is for the Coroner to decide, under rule 56 who has access to information” (paragraph 15). Therefore, the Tribunal concluded that “the decision whether or not to disclose information was for the Coroner, not the Council.”

The Tribunal stated that the “Coroner had in this case made the decision what was or was not to happen in relation to this information. This was consistent with the statutory regime under the Coroner’s Rules and indicated that ‘ownership’ of and control over this information lay both in fact and law with the Coroner” (paragraph 17). The Tribunal went on to explain the nature of the relationship between the Council and the Coroner by the fact that the Coroner is an “independent judicial office holder, whose decisions are made independently of the Council” (paragraph 17).

The Tribunal were satisfied however that “the Council held the information in the tapes solely on behalf of the Coroner, such that the information fell outside the jurisdiction of FOIA. This was not a question of reasonableness or degrees of co-operation — it was a narrow question to be judged on the facts of the matter and in the light of the different legislative regimes” (paragraph 19).

It should be noted however, that the ICO considers that there may be situations where a local authority could hold information originating from the coroner in its own right. For example it is conceivable that following a road traffic accident a local authority might obtain a copy of the coroner’s report in order to consider, in its capacity as highway’s authority, whether any road safety measures are required.

EIR

Regulation 3(2) of the EIR provide that:

“(2) For the purposes of these Regulations, environmental information is held by a public authority if the information —

• is in the authority’s possession and has been produced or received by the authority.
• is held by another person on behalf of the authority.”

The EIR do not include a provision, equivalent to that available under FOIA, to consider information held solely on behalf of another person as not held

Under the EIR information is held by virtue of being in the public authority’s possession. This means that information that is held by a public authority solely on behalf of another person is still held for the purposes of the Regulations (unless one of the specific circumstances set out in Regulation 3(3) and 3(4) apply).