The University and Colleges Admission Services GIA 1646 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 11 December 2014 |
| Neutral Citation | 2014 UKUT 557 AAC |
| Subject Matter | Information rights |
| Respondent | The Information Commissioner and Lord Lucas |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 1646 2014 |
| Appellant | The University and Colleges Admission Services |
[2015] AACR 25
(The University and Colleges Admissions Service v The Information
Commissioner and Lord Lucas [2014] UKUT 557 (AAC))
Judge Wikeley GIA/1646/2014
11 December 2014
Information rights – freedom of information – public authorities – interpretation of the Freedom of Information (Designation as Public Authorities) Order 2011
Lord Lucas applied to the University and Colleges Admissions Service (UCAS) under the Freedom of Information Act 2000 (FOIA) for information about historical applications to universities and the predicted grades of applicants. UCAS, a private company, had been designated a public authority for certain purposes under the Freedom of Information (Designation as Public Authorities) Order 2011. It refused the request on the grounds, amongst others, that it was not a public authority in respect of any information relating to previous admissions cycles, that the information regarding the applications was exempt under section 43(2) of FOIA and that information about grades was not held and would require the creation of new data. Lord Lucas complained to the Information Commissioner, who decided that UCAS was wrong regarding the effect of the Designation Order but accepted its submission regarding section 43(2) and the need for new information to be created. UCAS’s appeal was rejected by the First-tier Tribunal (F-tT), which held that the correct approach involved applying the decision BBC v Sugar (No. 2) [2012] UKSC 4. This required a three-part test, the first stage of which involved deciding whether the information could be said to be “connected with or arising out of” the designated function. UCAS appealed to the Upper Tribunal (UT), arguing that the F-tT had erred in law by wrongly formulating the test, in rejecting the “dominant purpose” test and in holding that the disputed historical information “related to” the designated function. Among the legal issues before the UT was whether the designation of a body as a public authority under FOIA, in respect of particular functions, should be interpreted broadly, thereby increasing the scope of the application of FOIA, or narrowly.
Held, dismissing the appeal, that:
- FOIA was a constitutionally important piece of legislation which must be interpreted broadly. The focus of the Designation Order was necessarily on what was included in terms of functions of a public nature, not on what was excluded, and its primary aim was to ensure that bodies that exercised functions of a public nature were subject to the same degree of scrutiny under FOIA in relation to those functions as “ordinary” public authorities. Accordingly, the F-tT had identified the correct test for identifying whether or not information related to UCAS’s designated functions (paragraphs 39 to 47)
- the F-tT’s consideration of the “dominant purpose” test had been sufficient (paragraph 54)
- the F-tT had correctly identified the relevant test to be applied in the light of Sugar (No. 2) and the key question was whether the disputed information was held by UCAS to any significant degree (not de minimis) in relation to the exercise of the Designated Function, even if it was also held in relation to other functions. The correct legal test having been applied, the conclusions that followed were ultimately questions of fact for the tribunal to decide (paragraphs 58 to 59).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to dismiss the appeal.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 15 January 2014, in relation to the Appellant’s appeal against the First Respondent’s Decision Notice FS50453565, does not involve any error on a point of law. The appeal is therefore dismissed and the First-tier Tribunal’s decision stands.
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS
FOIA, public authorities and the interpretation of the Designation Order 2011
1. Section 1 of the Freedom of Information Act 2000 (FOIA) provides what the heading describes as a “General right of access to information held by public authorities”. Section 1(1) confers certain rights on “any person making a request for information to a public authority”. So obviously, and in broad terms, public authorities, but not private bodies, are subject to FOIA.
2. The law, inevitably, is not quite that simple. Schedule 1 to the Act provides a lengthy list of public authorities, many of which are public authorities for all purposes in the context of FOIA. These include, of course, any government department (with the exception of the Office for Standards in Education, Children's Services and Skills, which is not included for all purposes: see FOIA, Schedule 1, paragraphs 1 and 1A as amended). Some bodies are public authorities except for certain activities. So, the British Broadcasting Corporation (the BBC) is a public authority but only “in respect of information held for purposes other than those of journalism, art or literature” (Schedule 1, Part VI). A much smaller number of bodies are designated by secondary legislation as public authorities but only for certain purposes – one such designated organisation being the Universities and Colleges Admissions Service (UCAS).
3. UCAS is the appellant in the present appeal. Its principal argument, in short, is that “where the requested information is held by it to a significant extent for, and for the immediate object or direct purpose of, some (commercial) function which is outside the function designated by the Designation Order (“the Designated Function”) that information does not fall within FOIA, even if it is also held for the purposes of the Designated Function and in relation to the institutions cited in the Designation Order” (skeleton argument at paragraph 1(a)).
4. The Information Commissioner (“the Commissioner”), and the First Respondent in this appeal, frames the principal legal issue arising on this appeal rather differently: “where a body is brought within the scope of FOIA in respect of particular functions should that designation be interpreted broadly, to increase the scope of the application of FOIA, or narrowly, to limit the scope of the designation?” (skeleton argument at paragraph 3). The Commissioner says it should be read broadly.
5. Both parties, however, argue that their approach to the question of statutory interpretation in this case is purposive. UCAS submits that the Designation Order must be construed purposively so as to give effect to Parliament’s intention to prevent the disclosure of information when this would risk interference with UCAS’s excluded (ie private commercial) functions. The Commissioner, on the other hand, contends that a broad and purposive approach to the construction of the relevant legislation must be adopted, so as to enable the disclosure of information, given the principles of greater openness and transparency that underpin FOIA.
A summary of the Upper Tribunal’s decision
6. In this case both the Commissioner and the First-tier Tribunal (“the Tribunal”) decided that the requested information fell within the scope of FOIA. I conclude, for the reasons that follow, that the Tribunal’s decision does not involve any error of law. I therefore dismiss the appeal by UCAS.
The legal framework
7. Section 3(1) of FOIA defines the term “public authority” in the following terms:
“(a) subject to section 4(4), any body which, any other person who, or the holder of any office which –
(i) is listed in Schedule 1, or
(ii) is designated by order under section 5, or
(b) a publicly-owned company as defined by section 6.”
8. Nothing in the instant appeal turns on either section 4(4) or section 6. So, for present purposes, public authorities are those bodies which are either listed in Schedule 1 to FOIA or designated by order under section 5. Schedule 1 itself does not list UCAS. Nor does it list individual universities. However, it does include in generic terms the governing body of eg any “university receiving financial support under section 65 of the Further and Higher Education Act 1992” (Schedule 1, paragraph 53(1)(b)). Those institutions sometimes referred to as private universities are accordingly outside the scope of FOIA.
9. Section 5 of FOIA provides what it describes as a “further power to designate public authorities”. The material provisions read as follows:
“(1) The Secretary of State may by order designate as a...
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