If you don’t hold it, don’t disclose it

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The Freedom of Information Act 2000 (the Act) remains a cornerstone in the drive to provide greater transparency and accountability over use of the public purse.

The First-Tier Tribunal (Information Rights) (the Tribunal) recently delivered a reminder to public authorities of the scope of the Act. On appeal in the case of Hackett v Information Commissioner and another (EA/2012/0265) the Tribunal upheld the Information Commissioner’s decision that a request under the Act for employment information from a public charity should not be complied with, since the information was not held by the public charity or another public body.

The United Learning Trust (ULT) is an education charity with 21 Academy schools. ULT were approached by the appellant to provide a range of information that included details of senior ULT staff members’ pay, pension contributions, other remuneration and expenses. The appellant’s request was refused on the basis that the employment information demanded was not held by ULT, but by the United Church School Trust (UCST) who, as a non publicly-funded charity, is not subject to the Act.

The Information Commissioner
ULT produced a copy of a senior member of staff’s employment contract to the Information Commissioner. The contract illustrated that the employee was legally employed directly by UCST and, therefore, the responsibilities for payment and pension contributions belonged to UCST, not ULT. The Information Commissioner held that the application be dismissed, because the information requested was held by UCST who, as a non publicly-funded charity, were not subject to the Act.

On appeal to the Tribunal
The appellant put forward the view that the corporate structure of ULT and UCST was an accounting process “in order not to have to publish the details of the public money that was paid to ULT’s chief executive and ULT’s senior managers”. In addition the appellant submitted that:

  • both ULT and UCST were subsidiaries of the United Church Schools Company and as such were, “in effect, both part of one company”;
  • the sole source of funds for the ULT Academies was derived from Government and, as such those funds should be accounted for publicly even if partially “distributed” through UCST
  • the information requested was “held by the company of which ULT was a part” and it was important to release the information to ensure that public spending was “open and transparent”.

The Tribunal acknowledged that the key question to answer was whether the information requested was held by ULT or UCST. In assessing the question the Tribunal appeared reluctant to look at whether the UCST, as a separate private entity, should be the employer to senior members of ULT’s staff. The Tribunal, however, did acknowledge that:

  • the corporate structure had been “urged on ULT” by the Department for Education
  • the two charities had maintained a “complete corporate separation”
  • the service agreement between ULT and UCST expressly referred to the senior staff being employed by UCST.

On the basis of the points outlined above the Tribunal unanimously upheld the decision of the Information Commissioner.

Further Information
Full details of the Tribunal’s decision can be found here.