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Posted 26 October 2018
by Simon Sanger-Anderson

FOI – Whose Information is it Anyway?

Town hall

Parish Council’s steering group holds information on its behalf under Environmental Information Regulations 2004 despite absence of parish council control or contract (Information Commissioner).

The Information Commissioner (IC) has determined that information possessed by a steering group created by a council, but which it did not control nor have a contractual relationship with, would be “held” on its behalf and subject to the Environmental Information Regulations 2004 (SI 2004/3391) (EIR).

Goring-on-Thames Parish Council (council) partly refused an EIR request for correspondence between volunteer neighbourhood steering groups (and sub-groups) and a private consultancy company as part of the former’s development of the neighbourhood plan. One such sub-group, the Site Selection Working Group (SSWG), had refused the council’s request for such correspondence. The SSWG had recommended the consultancy to the council; the council approved and paid for the consultancy’s services.

The council had not been copied into any correspondence between the SSWG and the consultancy, and the IC was satisfied that (if it existed) correspondence had not been produced or received by the council. There was no contract between the council and the consultancy, nor between the council and its steering groups (including the SSWG). Steering group volunteers were not council committee members. The IC considered that, on balance, the council did not control the SSWG.

The IC identified, however, that the SSWG only existed because of a council decision, without which the council would have had to develop the plan itself. The council had a legal responsibility for the neighbourhood plan. It was immaterial that there was no formal document that established working arrangements with the steering groups.

The Information Commissioner:

  • Determined that any information held by the SSWG was held by the council under the EIR and, where it was within the scope of the request, should be disclosed. This included any emails in the SSWG member’s private email account concerning the issue.
  • Required the council to issue a fresh decision as to whether any information was held under EIR.

The case presents a reminder of the ways in which information may be deemed “held” by a public authority under the EIR (and the Freedom of Information Act 2000). It also illustrates the difficulties that a public authority may face in recovering information without a contractual provision.

It is a situation upon which we have advised more than once and the difficulty which it presents can be easily surmounted by establishing at the outset clear Terms of Reference when the steering group (or similar) is set up.

Further advice
Please contact our specialist councils team at Planning and Services on 01392 207020.

 

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About the author

Simon Sanger-Anderson

Partner and Solicitor

Partner and solicitor within the employment team, Simon also leads the firm's cross departmental Social Housing Practice Group