A recent decision of the UK Information Commissioner looked at the issue of when information is held by a public authority.  The Freedom of Information Act 2000 provides that only information which is held by a public body, or held by a third party on behalf of a public body, can be disclosed.

This particular decision related to a complainant who had requested from the Foreign and Colonial Office ("FCO") the tender document that won Tarmac and its sub-contractor the contract to construct the Government Communications Headquarters' ("GCHQ") new building.  The FCO maintained that it did not hold the document requested—the tender process had been contracted out, through the Private Finance Initiative, by the Foreign Secretary, to a separate company that had entered into the contract with Tarmac. The Secretary of State, in contracting out the tender, had been acting in his capacity as the supervising Minister for the GCHQ, rather than as Minister for Foreign and Commonwealth Affairs. The FCO, according to its normal policy, would hold on file documents relating to the Private Finance Initiative process; however, as it was not involved in the GCHQ's new building, it held no documents relating to that.

The Commissioner accepted that under the circumstances, the FCO did not hold the document requested. The company that had contracted with Tarmac for the provision of construction work would hold it, but was not subject to the Act. Given that this company had been engaged to procure the construction of the new building, it could not be said to be holding the information on the FCO's behalf.

The Scottish Information Commissioner has also issued some interesting decisions on the circumstances in which a public body can be said to hold information. In John Egan and West Dunbartonshire Council, he found that information held by councillors which relates to their constituency or party political business is not held by the Council; only information which relates to activities where the councillor acts on behalf of the Council can be treated as so held.

Similarly, in Mr Shields and the Scottish Parliament, the Scottish Information Commissioner stated that any information held by MSPs in their Parliamentary offices or on the Parliament's IT systems was held by Parliament on behalf of the MSPs, and was therefore not subject to disclosure under the Act. The Commissioner found that MSPs could not have been intended to be caught by the Act, as that would leave far too much information open to disclosure, and would be out of keeping with other jurisdictions with Freedom of Information legislation. MSPs are office holders in their own right, and should have been named as public authorities in the Act if it was intended that they should be covered. The Scottish Parliament, according to the Commissioner, is only a public authority for the purposes of information held which relates to its legislative function.


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