What's mine is yours

The First-tier Tribunal finds that information is not held by a University for the purposes of FOIA, even though emails were sent or received by a University email account.

In an interesting decision handed down last week, the First-tier Tribunal dismissed an appeal against the Information Commissioner's decision notice which held that a University did not hold the information requested under a freedom of information request for the purposes of the Freedom of Information Act 2000 (FOIA).  

The information request related to correspondence of the Vice-Chancellor in his capacity as a board member of a separate employers’ association.  Although the Vice-Chancellor was allowed to use his University e-mail account and the University was a ‘subscribing member’ of the association, the tribunal decided that there was insufficient connection between the University and that information.  The University was therefore entitled to rely on section 3(2)(a) of FOIA as it held the information solely on behalf of another person.

Brief summary of the facts

Professor Baldwin, the Vice-Chancellor of the University of Central Lancashire (the University), also acted as a director and deputy chair of the board of the University and Colleges Employers Association (UCEA). UCEA is non-profit company limited by guarantee and describes itself as ‘the collective voice of universities’.  The UCEA is funded through subscriptions from universities and other higher education institutions.

Professor Baldwin was allowed to use his University email account for correspondence in his role on the board of UCEA. A request was made to the University in August 2023 for all communications of Professor Baldwin that related to Queen's University Belfast (QUB), following termination of QUB’s membership of the UCEA by the UCEA board.  In its response, the University stated that it did not hold the requested information.

In January 2024, the Information Commissioner issued a decision notice which concluded that, were any requested information held, the University would not use it for its own purposes and that it would be a private communication between the Professor and the UCEA. The Information Commissioner was satisfied that the University was entitled to rely on section 3(2) of FOIA which provides:

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.

Decision

On appeal, Dr Farfan (the appellant) contended that the Information Commissioner was wrong to conclude that the University did not hold the requested information.  One of his key arguments was that case law supported a simple approach to assessing whether information was held or not, and that the bar in determining whether or not information is held is relatively low. He also submitted that all is needed is a de minimis interest between the public authority and the information requested.

During its discussion, the tribunal pointed out that it did not need to determine whether the UCEA was a public authority within FOIA, as the request was made to the University.  It did, however, need to consider the relationship between the UCEA and the University as a ‘subscribing university’. 

The tribunal considered that the underlying corporate structure of the UCEA did not assist in determining whether or not the information was held by the University solely on behalf of UCEA.  Instead the key issue was whether Professor Baldwin was sitting on the board of UCEA as a representative of the University.   As not all heads of subscribing institutions are on the board (which is intended to represent a diverse range of institutions), the tribunal concluded that Professor Baldwin was on the board as a “vice-chancellor of a university rather than as the vice-chancellor of the University”.

As the correspondence covered by the request was sent and received by Professor Baldwin in his capacity as a board member of UCEA rather than in his capacity as Vice-Chancellor, the tribunal concluded that there was insufficient connection between the University and that information. The information held by the University was therefore held solely on behalf of either UCEA or Professor Baldwin in his capacity as board member or director of UCEA.

Key takeaways

The decision highlights the need to establish an appropriate connection between the requested information and the role and functions of the public authority.   In the decision, the tribunal determined that the information was not being used in any way for University business, even though the emails in question were being sent and received by Professor Baldwin using his University email account.  This suggests that, just because emails may have been sent from or received by a public authority email account does not, in itself, create a sufficient connection between the information and that public authority – the important consideration is the purpose/circumstances of those emails and the extent to which this relates to the public authority in question. This will need to assessed on a case-by-case basis.

In its guidance, the ICO lists several factors that can help to determine whether information is held for the purposes of a public authority, including:

• extent of access to the information;

• degree of control the public authority has over the information;

• extent to which the information is used for the public authority’s own purposes;

• input in its creation or alteration;

• responsibility over the management of the information; and

• whether merely storage is provided.

The weight attached to each factor will vary depending on the circumstances of each case. As determining whether information is held is a factual issue, the Information Commissioner will decide the issue on the balance of probabilities in the event of a complaint.

It is worth highlighting that even if a public authority is holding the information solely on behalf of another person, this does not necessarily mean that this the information falls outside of FOIA.  It may be held on behalf of another public authority, so it’s good practice to tell the applicant to redirect the request.

Co-author: Emily Holdsworth

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.