Public authorities often enter into outsourcing and private finance initiative (PFI) arrangements with the private sector to run services or deliver capital projects.
These are often the subject of complex requests for information under the Freedom of Information Act 2000 (FoI). Sometimes the private sector will hold the requested information and the public authority will have access to it but on restricted terms. The question arises: who holds the information for the purposes of FoI?
Section 3(2) of the act states: ‘For the purposes of this act, information is held by a public authority if: (a) it is held by the authority, otherwise than on behalf of another person; or (b) it is held by another person on behalf of the authority.’
In a recent ruling by the First Tier Tribunal (Information Rights) (the tribunal), Alan Dransfield v IC and Devon County Council (EA/2010/0152), the appellant made a request for an operations maintenance manual for a school which was built and maintained by a private company under a PFI arrangement with the council.
The contract between the parties required the company to maintain and update the manual and give access, upon request, to the council to demonstrate that it had complied with this obligation. The contract also contained a strict confidentiality clause preventing the parties and their employees from disclosing anything within the contract and project documents.
The council submitted that the manual was not held by it but by the contractor and so was not subject to the FoI. It was only entitled to access the manual for the sole purpose of determining whether the contractor had complied with its obligations with respect to the compilation and maintenance of it. The council had had no input into generating the information within it, no control over it and no right to disseminate it or deal with it in any other way.
The tribunal agreed with these submissions. It ruled that the council did not hold the requested information and has not held it at any relevant date, and therefore it was not obliged to make it available to the appellant under FoI. It noted though that after 2033 the position will change when the council will have direct responsibility for the maintenance of the school and will have a full right of access to the manual. It will then hold the information within it for FoI purposes.
This decision clarifies the question of applicability of FoI to information held by contractors under PFI arrangements. In any particular case though, care will have to be taken to examine: the precise nature of the requested information; the basis upon which it is held; and what rights of access the public authority has to it (and to disclose it further).
Here the information concerned the record of operations and maintenance of the school, which was part of the company’s internal procedures at this stage (having contractual responsibility for the maintenance of the school). The only access the council needed to it was to ensure that it was being maintained, and even then it was subject to a strict confidentiality clause. After 2033, as the tribunal explained, when the contract ended it would need (and have) full access to the manual and would therefore be holding the information within it under FoI.
The commissioner’s guidance note on refusing requests under section 14 of the FoI states that, when considering whether a request is vexatious, a public authority can take account of the context in which the request was made. Duke v IC and University of Salford (EA/2011/0060) is the first tribunal appeal against a public authority that decided to refuse requests for information from the appellant after taking into account the fact that a substantial number of FoI requests had been received during a specific period from different people acting in concert.
It is the FoI equivalent of concluding that these multiple, associated requests amount, in effect, to what in internet terms is known as a denial of service attack.
The appellant, a dismissed former employee, was believed to be behind a concerted campaign of FoI requests to the University of Salford. Between October 2009 and February 2010, the university received more than 100 requests for information, submitted by 13 individuals, mostly via the WhatDoTheyKnow.com (WDTK) website. Some of the requests had been made under pseudonyms.
Compare these figures with those for the whole of 2008 when the university had received 117 requests submitted by 78 different requestors. The appellant and other requestors also distributed satirical literature and maintained websites critical of the university.
In the light of the context of the appellant’s requests and his concerted campaign, together with others, the tribunal upheld the commissioner’s findings that the requests were vexatious. It is interesting to note that the tribunal and the commissioner gave weight to the fact that the first request which ‘kicked things off’ (and many of the subsequent requests) were made via WDTK.
While this in itself cannot be evidence of the appellant being vexatious, the tribunal seems to have concluded that the purpose of using the site was to encourage associates of the appellant to make requests.
So while WDTK is still a legitimate way of making FoI requests, public authorities who are inundated with requests from different people via the same site may wish (when deciding whether a request is vexatious) to check the site to see if there is any explicit or implicit encouragement to others by the requestor to make requests and if there is an upsurge in requests as a result. These issues may, in the light of the above case, be legitimately taken into account in deciding whether any requests are vexatious.
Public sector salaries
In June 2010, the salaries of those earning more than £150,000 were revealed for the first time by the government in a bid to aid transparency. According to Cabinet Office figures, more than 170 civil servants are paid more than David Cameron’s £142,500-a-year salary. The government said at the time that increased transparency on senior pay will ‘help win back people’s trust’. However, not all civil servants agreed.
In June, the Information Commissioner ordered the Cabinet Office (reference: FS50347053) to disclose the names of 20 civil servants who earn more than £150,000 after it had previously withheld the information on the basis that the individuals did not consent to their details being released, and so the disclosure would breach one of the data protection principles. It claimed the exemption under section 40(2) (third-party personal data).
The commissioner stated that those who receive some of the highest salaries in the public sector should expect certain information on their public or work life to be made public, including details of their remuneration. Public policy has been clearly articulated in terms of greater transparency for public expenditure (including salary information) for many years.
The commissioner found that there is a widespread expectation that those in the public sector earning more than £150,000 will be named as earning over that amount. He also noted that the information disclosed would not reveal an exact salary. He ruled that disclosure was fair and lawful, and any expectation of privacy on the part of the subjects was not reasonable.
Schools in the spotlight
Despite the fact that many solicitors are school governors, there is still a lack of awareness of the Data Protection Act 1998 (DPA) and the FoI among those who work in and manage schools. Every school is covered, in its own right, by each piece of legislation. In April, Freehold Community School in Oldham was found to have breached the DPA after the overnight theft of an unencrypted laptop from a teacher’s car.
In May, Aberdare Girls School in south Wales signed an undertaking to improve its freedom of information practices following the Information Commissioner’s concerns over its refusal to disclose information under FoI. This related to the legal costs and advice sought over the exclusion of a former pupil who refused to remove a religious bangle. During the commissioner’s enquiries, the school repeatedly failed to provide timely responses to questions. All school advisers and governors should take note.
Ibrahim Hasan is a solicitor and director of Act Now Training