FOIA request – is information held?

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The Freedom of Information Act 2000 (FOIA) entitles anyone to make a request to a public authority for information. Providing the request is in writing, the requester is not required to specify why he or she wants the information and the public authority is required to assess it and respond accordingly within 20 working days.

A public authority such as a local council, government department or other governmental agency may be able to rely on relevant exemptions in its reply meaning that it might not have to disclose any information or redact certain information depending on the circumstances.

However, as a recent case established prior to doing that, a public authority is entitled to first decide whether the information requested is held by that particular public authority.

In the case of Mr Mike Barnes v The Information Commissioner and Stoke on Trent City Council earlier this year the First-Tier Information Tribunal held that as the information requested was not held by the Council it was not required to disclose it.

The request for information by Mr Barnes was for copies of minutes held by council representatives of the Local Safeguarding Children Board (LSCB).

The Council relying on section 3 (2) of FOIA replied that it did not hold the information for the purposes of FOIA because it was held on behalf of the LSCB so it was not required to comply. The Council’s argument was that the LSCB was established under section 13 of the Children Act 2004 and its functions as set out in “Working together to safeguard children 2015” meant that it is not a public authority for the purposes of FOIA. The ICO agreed with this assessment and so did the tribunal.

The tribunal pointed out that it was not disputed that the LSCB was not a public authority for the purposes of FOIA and it was satisfied that as the Council did not hold the information for its own purposes it was not disclosable under FOIA. The tribunal also considered the role of the council employees and the role of the minutes. It found that whilst the Council contributes by seconding an employee, it does not have ownership of the minutes that are generated as this is a matter for the LSCB, the activities that the members perform are on behalf of LSCB and not the Council, the minutes are not published or widely circulated and transparency is provided by the LSCB publishing an annual report.

Mr Barnes also argued that the Council’s approach was inconsistent as it had previously disclosed minutes of SSLP (the Stoke and Staffordshire Local Enterprise Partnership) following a FOIA request, an independent body with representatives from the Council. The Commissioner pointed out the SSLP published its minutes online. The Council stated that the minutes were disclosed pursuant to the Environmental Information Regulations 2004 and for the tribunal the important aspect was that the actions of the Council in relation to other independent bodies do not change the facts in relation to the matter before the tribunal. Also the tribunal does not have the power to add an organisation under FOIA.

This is an important decision because it makes clear that examining whether the information is held by the relevant public authority is an important question. In relation to an independent body with Council representation, it is important to consider the relevant activities of that body to determine whether it is covered by FOIA.

Forbes Solicitors provide advice to a range of public authorities in relation to the applicability of FOIA, as well as advice in relation to the Data Protection Act 1998, the Environmental Information Regulations 2004 and the Privacy and Electronic Communications Regulations. If you have any questions, please contact Daniel Milnes.

Nat Avdiu

About Nat Avdiu

Nat Avdiu is a Paralegal in the Contracts and Projects team at Forbes Solicitors. Nat provides updates for clients on a range of issues including: governance, data protection and freedom of information, procurement and charity law.
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