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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> The University and Colleges Admission Services v The Information Commissioner and Lord Lucas (Information rights : Data protection) [2014] UKUT 557 (AAC) (11 December 2014) URL: https://www.bailii.org/uk/cases/UKUT/AAC/2014/557.html Cite as: [2014] UKUT 557 (AAC) |
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DECISION BY 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) 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 §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 §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 (i.e. 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 e.g. 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 public authority for the purposes of this Act any person who is neither listed in Schedule 1 nor capable of being added to that Schedule by an order under section 4(1), but who—
(a) appears to the Secretary of State to exercise functions of a public nature, or
(b) is providing under a contract made with a public authority any service whose provision is a function of that authority.
(2) An order under this section may designate a specified person or office or persons or offices falling within a specified description.
(3) Before making an order under this section, the Secretary of State shall consult every person to whom the order relates, or persons appearing to him to represent such persons.”
10. Section 5 is then supplemented by section 7(5), which provides that:
“(5) An order under section 5(1)(a) must specify the functions of the public authority designated by the order with respect to which the designation is to have effect; and nothing in Parts I to V of this Act applies to information which is held by the authority but does not relate to the exercise of those functions.”
11. To
date there has only been one Order made under the power vested by section
5(1)(a). The Freedom
of Information (Designation as Public Authorities) Order 2011 (SI 2011/2598;
“the Designation Order”) came into force on 1 November 2011. It designated
three particular bodies as being public authorities (or at any rate in respect
to certain functions): (1) the Association of Chief Police Officers (ACPO, at least
as it is currently known), (2) the Financial Ombudsman Service and (3) UCAS.
Article 2 of the Order provided that “The persons listed in column 1 of the
Schedule are designated as public authorities under section 5(1)(a) of the
Freedom of Information Act 2000 with respect to the function or functions
specified in column 2.” The relevant entry in the Schedule to the Order reads
as follows:
The Universities and Colleges Admissions Service |
The provision and maintenance of a central applications and admissions service in relation to: (a) an institution listed in paragraphs 53(1)(a) to (e) and 55(1)(a) and (b) of Part 4 of Schedule 1 to the Freedom of Information Act 2000; (b) an institution listed in Part 5 of Schedule 1 to the Freedom of Information (Scotland) Act 2002; (c) the College of Agriculture, Food and Rural Enterprise.
|
12. It
followed that the nub of this appeal was the proper interpretation of the designated
function, encapsulated in the expression “the provision and
maintenance of a central applications and admissions service in relation to ...” the institutions
generically described in paragraphs (a), (b) and (c) of the entry against UCAS
in column 2 of the Schedule – in essence publicly-funded universities (strictly
“higher education institutions”, or “HEIs”, would be a more accurate term, but
“universities” suffices for present purposes) and further education (FE)
colleges.
UCAS,
the FOIA requests by Lord Lucas and the factual background
13. UCAS
processes around 700,000 undergraduate student applications in a typical year. Many
of those students and their parents doubtless assume that
UCAS
is, to use a
deliberately vague term, some form of government agency. It is actually nothing
of the sort. A footnote to the Designation Order informs the reader that
UCAS
is “A company incorporated under the Companies Act 2006 with the registration
number 2839815.” It is also a registered charity, and one that receives no
government funding. Its total income in 2011-12 was £34 million, of which about
one third was generated by its wholly-owned trading subsidiary,
UCAS
Media
Limited, with the other main revenue streams being charges to universities and
application fees levied on students.
UCAS
Media Ltd provides various analytical
services to commercial and non-commercial organisations alike. According to
UCAS,
UCAS
Media Ltd’s business model – and hence the long-term sustainability
of
UCAS’s
core activities – is based on the right of exclusivity to what it
calls “historical admissions data”, i.e. applications and admissions data
relating not to the current year but to previous annual admissions cycles.
14. Lord
Lucas, the requester and Second Respondent in this appeal, is a publisher and also
editor of The Good Schools Guide, a well-known commercial publication. Coincidentally
for present purposes he is also a member of the House of Lords. He made a
series of FOIA requests to UCAS.
The present appeal concerns only two of those
requests, known as Request 5 and Request 6, made in February and March 2012
respectively.
15. Request
5 sought from UCAS
data about the number of applications and confirmed accepted
applications to universities for the three academic years “from 2009/10 to 2011/12
(to date)”.
UCAS
initially responded by advising Lord Lucas that it held the
information requested, but considered that it was entitled to refuse the
request on the basis of sections 12 (cost of compliance), 21 (information
accessible by other means), 40(2) (personal data) and 43(2) (information likely
to prejudice commercial interests). In the course of the Commissioner’s
investigation,
UCAS
modified its position, to the effect that (i) it argued the
historic admissions data (i.e. 2009/10 to 2011/12) was not covered by FOIA,
being outside the scope of the Designation Order; (ii) it conceded data
relating to 2012/13, the live cycle at the time of the request, was in
principle within the remit of FOIA; but (iii) it contended in any event all the
requested data was exempt from disclosure on the basis of sections 41(1), 43(1)
and 43(2) and the public interest did not favour disclosure.
16. In
Request 6 Lord Lucas requested from UCAS
comparative data about the predicted
grades given by schools for each A Level (or equivalent) examination and the
actual grades achieved by pupils, and as before for the years “2009/10 to 2011/12
(to date)”.
UCAS
initially refused the request, again citing sections 12, 21,
40(2) and 43(2) of FOIA. Again,
UCAS
later refined its arguments, contending
(as with Request 5) that the historic data from previous years fell outside the
scope of FOIA but (in contradistinction to Request 5) explaining that the
information in question in any event was not held by
UCAS
in the form or level
of detail sought, but would require the creation of new information.
The Information Commissioner’s Decision Notice
17. On 22 May 2013 the Commissioner issued a detailed and lengthy Decision Notice on the complaint by Lord Lucas (FS5043565). The gist of that Decision Notice was helpfully summarised at paragraphs 1 and 2:
“1. The complainant submitted a number of
requests to UCAS.
‘Request 5’ sought data about applications to universities;
‘request 6’ sought data about the accuracy of predicted grades of applicants to
universities.
UCAS
argued that as a public authority, that was only partially
covered by FOIA, it had no obligations under FOIA in relation to information
that was not held for the immediate purpose of its single FOIA designated function,
namely the provision and maintenance of a central applications and admissions
service. It concluded that on this basis the majority of the requested
information was not in fact accessible under FOIA, in other words is was not a
public authority in respect of the majority of the requested information as it
related to previous admissions cycles. In the alternative,
UCAS
argued that the
information falling in the scope of request 5 was exempt on the basis of
sections 41(1), 43(1) and 43(2) of FOIA and that fulfilling request 6 would
require the creation of new information, something it was not required to do
under FOIA.
2. With regards to the issue of its
designation, the Commissioner disagrees with UCAS
and has instead concluded
that all of the information falling within the scope of both requests is
potentially accessible from
UCAS
under FOIA. However, the Commissioner is
satisfied that the information falling within the scope of request 5 was
correctly withheld on the basis of section 43(2), the commercial interests
exemption, and that fulfilling request 6 would indeed require the creation of
new information and thus for the purposes of FOIA,
UCAS
does not hold the
information sought by request 6.”
18. In
short, the Commissioner disagreed with UCAS
on the effect of the Designation Order,
rejecting
UCAS’s
argument that the historic data was outside the scope of FOIA,
but accepted
UCAS’s
position on the remaining issues (with the proviso that the
Commissioner, having found that section 43(2) applied, did not need to explore
the other exemptions relied on by
UCAS).
Thereafter
UCAS
lodged an appeal with
the Tribunal, arguing that the Tribunal should allow the appeal and substitute
a Decision Notice to the effect that the historic disputed information was
outside the scope of FOIA. Lord Lucas indicated that he would not be appealing
against those elements of the Commissioner’s Decision Notice that went against
him. He indicated that he was “content that the Commissioner should give fair
weight to commercial considerations” but warned that, in his view, “
UCAS’s
appeal, if upheld, would render the designation without any real effect”.
The First-tier Tribunal’s hearing and decision
19. The
Tribunal held an oral hearing of UCAS’s
appeal on 2 December 2013. It heard
oral evidence from Ms Mary Curnock Cook,
UCAS’s
Chief Executive, and Dr Mark
Corver, its Head of Analysis and Research, based on their written witness
statements. In its decision dated 15 January 2014 the Tribunal upheld the
Commissioner’s Decision Notice and so dismissed
UCAS’s
appeal.
20. In particular, the Tribunal held that the Commissioner had not misdirected himself as to the proper test to be applied when considering the application of the Designation Order. The Tribunal concluded that the correct test, applying BBC v Sugar (No. 2) [2012] UKSC 4 (which it referred to as Sugar, but to avoid any possible confusion I refer to as Sugar (No. 2)), is as follows:
“[63] Information held by UCAS
falls into one
of two categories. It is either in no way held in relation to the Designated
Function, or it is held in relation to the Designated Function even if it is
also held in relation to other (possibly more important) functions. The
sequence for applying Sugar, is as follows:
(1) Is the information held by UCAS
to any
significant degree (not de minimis) in relation to the exercise of the
Designated Function, even if it is also held in relation to other (possibly
more important) functions? Where there is doubt over the degree to which it is
held, the relevant question is whether there is a sufficiently direct link,
sufficient proximity, between the holding of the information and the exercise
of the Designated Function.
(2) If yes, is the information held in relation to a listed institution within the meaning of the 2011 Order? If yes, then information falls within the scope of FOIA.
(3) Does an exemption within Part I or II of FOIA apply?”
21. In
doing so, the Tribunal also rejected UCAS’s
alternative submission that it
should adopt the “dominant purpose” test (decision at [73]). Further, the
Tribunal ruled that in deciding whether information related to a designated
function the correct legal test was whether the information could be said to be
“connected with or arising out of” the designated function (decision at [74]).
Applying that test, the Tribunal concluded “considering the evidence in the
round, that the Historic Disputed Information relates to some significant
degree and not de minimis to the Designated Function” (decision at
[76]).
22. Judge
Callender Smith, who presided over the Tribunal in question, subsequently gave
UCAS
permission to appeal on a point of law to the Upper Tribunal.
The Upper Tribunal’s oral hearing
23. I
held an oral hearing of the further appeal at Field House on 1 October 2014. UCAS
were represented by Ms Monica Carss-Frisk QC and Ms Jane Collier of Counsel;
the Commissioner was represented by Mr Christopher Knight of Counsel, who had all
appeared at first instance. Lord Lucas also attended, more by way of a watching
brief than as an active party, although he took the opportunity to make some
observations on the appeal. I am grateful to all concerned for their helpful
contributions, both written and oral. I also invited further submissions after
the hearing on a jurisdictional issue, an invitation which was taken up by
UCAS
and the Commissioner but an offer which Lord Lucas (not unreasonably) declined.
Before dealing with
UCAS’s
grounds of appeal, there are two preliminary matters
to mention.
Two preliminary matters
(1) A purely academic issue?
24. The
first preliminary matter was my lurking concern when previewing this case that
this appeal to the Upper Tribunal was now purely academic. In one practical
sense at least, there was simply no longer any live issue between the parties
as to the outcome of the proceedings. The Commissioner had agreed with UCAS
that the qualified exemption under section 43(2) (information likely to
prejudice commercial interests) of FOIA applied in any event to Request 5. Lord
Lucas had very fairly intimated at an early stage that he was not minded to
dispute that assessment. So
UCAS
was entitled not to disclose any information
in response to Requests 5 (because an exemption applied) and 6 (because the
disputed information was not held in any event) and nothing was going to change
that outcome. In the event I did not invite submissions on this concern. My
reasons were as follows.
25. UCAS’s
position was plain: so far as it was concerned, the appropriate construction of
the Designation Order was “of considerable practical importance to
UCAS
in
determining how to respond to future requests for information; and [is]
particularly significant in relation to the commercial operations which provide
a substantial source of
UCAS’s
funding” (skeleton argument at §2). The Commissioner took
an active role in resisting
UCAS’s
appeal, arguing that the Tribunal’s decision
was not limited to the position of
UCAS
but more generally “provided guidance
as to the correct approach to take where an authority is designated by Order
for the purposes of FOIA in respect of its functions” (skeleton argument at
§1). In addition, as Mr Knight reminded me, the general right conferred by
section 1 of FOIA has to be read through a dual lens. It is not simply a right
that the requester have “information communicated to him” (section 1(1)(b)); it
is also a right “to be informed in writing by the public authority whether it
holds information of the description specified in the request” (section
1(1)(b)), whether or not disclosure can be refused by virtue of an exemption. As
Mr Knight observed, that may be a valuable right in itself. Lord Lucas himself
was certainly alive to the wider policy implications involved in this appeal.
In all those circumstances it is clearly appropriate to decide the legal issue
between the parties, even if the practical outcome of these particular FOIA
requests will not be directly affected.
(2) A question of jurisdiction?
26. The second preliminary matter, which I raised at the oral hearing and on which I invited further submissions to be made in writing, was potentially more troublesome. I pointed out that a jurisdictional issue had arisen in a series of other freedom of information cases currently pending before the Upper Tribunal. The cases in question are Fish Legal and Shirley v Information Commissioner (GIA/979/2011 and GIA/980/2011), Duchy of Cornwall and HM Attorney General to HRH Prince of Wales v Bruton and Information Commissioner (GIA/158/2012) and Cross v Information Commissioner and Cabinet Office (GI/2187/2013). In all three cases the Commissioner had declined to deal with complaints made under the Environmental Information Regulations 2004 (SI 2004/3391: “the EIR”) on the basis that the bodies in question, from which the disputed information was sought (certain water companies, the Duchy of Cornwall and the Royal Household respectively), were not “public authorities”. The Government’s case is (as I understand it to be) that it is for the High Court in judicial review proceedings (and not the First-tier or Upper Tribunal) to determine, as a matter of precedent fact, whether a particular body is, or is not, a public authority for the purposes of the EIR when the Commissioner has declined jurisdiction on that basis. In particular, I raised with the parties in the present proceedings whether there was any appetite for the present appeal to be stayed pending the resolution of the Fish Legal and allied litigation.
27. In
its helpful further written submission, UCAS
expressly disavowed any wish to
pursue an argument either that the Commissioner did not have jurisdiction to
determine whether the relevant requested information fell within the scope of
FOIA and/or that the First-tier and Upper Tribunals had no jurisdiction to hear
its appeal against the Commissioner’s Decision Notice in this case. However,
entirely understandably
UCAS
reserved its right to pursue such arguments in
relation to future requests, or indeed to appeals in relation to such
future requests, depending in part on the outcome of such other litigation. The
Commissioner, in the light of
UCAS’s
stated position, has nothing further to
add and was content for the matter to proceed to determination. As noted above,
Lord Lucas did not wish to make any observations on this particular matter.
28. It is axiomatic that the parties cannot confer jurisdiction on the Tribunal by agreement where no such jurisdiction exists as a matter of law. However, as matters stand it appears to me that the Tribunal clearly had jurisdiction to determine this appeal against the Commissioner’s Decision Notice by virtue of section 57(1) of FOIA. I proceed accordingly.
UCAS’s
grounds of appeal against the Tribunal’s decision
29. UCAS
advances three grounds of appeal. The first is that the Tribunal erred in law
in its analysis of the correct test to be applied when determining whether
information held by
UCAS
fell within the scope of FOIA. In short,
UCAS
submits
that the Tribunal got it wrong in formulating the test as it did in paragraph
[63] of its decision (see paragraph 20 above). The second, and alternative or
fall-back ground of appeal, is that the Tribunal erred in law in rejecting the
“dominant purpose” test. The third ground is that the Tribunal erred in law in
holding that the disputed historical information “related to” the designated
function.
30. The
Commissioner, in short, argues that UCAS’s
appeal should be dismissed, for the
reasons given in both the Decision Notice and the Tribunal’s decision. His core
submission is that the Tribunal directed itself properly as to the correct
legal test and applied that test properly on the facts.
The Upper Tribunal’s analysis of the three grounds of appeal
Ground 1: the correct test to be applied under the Designation Order
The parties’ submissions in outline
31. Ms
Carrs-Frisk’s primary submission was that the Tribunal had applied the wrong
legal test in upholding the Commissioner’s Decision Notice. In her submission a
two-stage test should first be applied in deciding whether the requested
information was within the scope of the Designation Order. First, is UCAS
exercising the Designated Function, in other words is the information held for
the provision and maintenance of a central applications and admissions service?
Secondly, if so, was
UCAS
doing so in relation to specific institutions cited
in the Designation Order? If the answers to both limbs of that initial
two-stage test were in the affirmative, then further questions had to be asked:
is the relevant information also held to a significant extent for some other
(e.g. commercial) purpose which is outside the scope of the Designated
Function? If so, is the immediate object of
UCAS
holding the information
related to its non-designated (e.g. commercial) functions? If yes, then the
information falls outside the ambit of FOIA. This alternative test was
justified in two main ways.
32. First,
Ms Carrs-Frisk QC argued that this formulation of the proper approach was
consistent with the intention of Parliament in making the Designation Order, as
shown by the relevant ministerial statements to the House of Lords Grand
Committee when the 28th Report from the Joint Committee on Statutory
Instruments was considered (Hansard, HL Vol. 731, cols GC15-24, 17
October 2011), and echoed in the First Delegated Legislation Committee in the House
of Commons (cols 3-10, 18 October 2011). Those ministerial statements had made
it clear that UCAS’s
commercial functions were regarded as distinct from the
central applications services it provided and so were not considered to be
functions of a public nature.
33. Second,
Ms Carrs-Frisk QC submitted that only this approach was consistent with the
decision of the Supreme Court in Sugar (No. 2). The Supreme Court had
held there, in view of both the language and purpose of FOIA, that information
held by the BBC to any significant degree for the purposes of journalism was not
“held for purposes other than those of journalism” within the meaning of Part
VI of Schedule 1 to FOIA (even if, in fact, the information was held for other
possibly more significant purposes). The effect of Sugar (No. 2) was
that information held for an excluded purpose (there journalism) should be
protected, i.e. not made subject to the obligations of FOIA, even if the
information was held for other non-excluded and possibly more significant
purposes. The reason for this was to prevent any interference with the BBC’s
performance of the excluded functions. By the same token, the Designation Order
also had to be construed purposively in order to prevent disclosure of
information when this would risk interference with UCAS’s
excluded (commercial)
functions.
34. UCAS’s
position, therefore, was that the Tribunal had failed to follow and indeed
arrived at a conclusion which was in substance diametrically opposed to the
outcome in Sugar (No. 2). The Tribunal had adopted the opposite
construction to that mandated by the Supreme Court – in other words, if there
was a sufficient link from the disputed information to a function that was
within the remit of FOIA, then the information was also within the scope of
FOIA. The Tribunal’s approach also failed to give effect to section 5 of the
Act (which limits the designated FOIA function to those functions of a public
nature) and was inconsistent with section 7(5), which plainly excluded from the
scope of FOIA information which does not relate to the designated functions.
35. Mr
Knight, for the Commissioner, argued that the starting point for the
interpretation of FOIA (and, necessarily, of any secondary legislation such as
the Designation Order) comprised the following three principles. First, the
statutory purpose of FOIA was to make provision for the disclosure of
information held by public authorities in the interests of greater openness and
transparency. Second, and as has been confirmed in the case law, FOIA should be
construed broadly and liberally, rather than narrowly. Third, a broad
construction of the scope of FOIA is itself of purposive value because of the
dual limbs of the section 1 general right (see paragraph 25 above). It followed
that the principal purpose of the Designation Order was to bring UCAS’s
designated function within the scope of FOIA and subject to the principles of
greater openness and transparency.
36. Mr
Knight further submitted that Sugar (No. 2) did not apply in the way
that Ms Carrs-Frisk QC had argued. The BBC was in the reverse position to UCAS.
The starting point of the two bodies was fundamentally different in that the
BBC is designated as a public authority in relation to all of its functions
except those exempted by the wording of its designation in Schedule 1 to FOIA.
UCAS,
by contrast, is not designated as a public authority generally, but only
for the function(s) included by the specific wording in the Designation Order.
The purpose of the statutory wording was also different: the relevant phrase at
issue in Sugar (No. 2) was, as the Supreme Court noted, positive in form
but negative in substance, with the emphasis on what was not covered by FOIA.
In
UCAS’s
case, however, the language of the Designation Order was plainly
positive and so focussed on what was caught by FOIA. The contexts of
UCAS
and
the BBC were thus different.
37. Rather,
Mr Knight submitted, the significance of the Supreme Court’s decision in Sugar
(No. 2) lay in Lord Walker’s observation that information held by the BBC
in effect fell into only two categories: “one is information held for purposes
that are in no way those of journalism, and the other is information held for
the purposes of journalism, even if it is also held for other (possibly more
important purposes” (at [75]). Applying the same analysis to the position of
UCAS,
information was either in no way held in relation to the designated
function or it was so held, even if it was also held for other more important
functions. The Tribunal had therefore correctly applied the relevant principle
in Sugar (No. 2) in its formulation of the test to be applied (decision,
[63]; see paragraph 20 above). It was normally sufficient to ask simply whether
the information was held to any significant degree (not de minimis) in
relation to the exercise of the designated function, even if it is also held in
relation to other (possibly more important) functions. If there was any doubt
over the degree to which it was held, then it was appropriate to go on to ask
whether there was a sufficiently direct link or sufficient proximity between
the holding of the information and the exercise of the designated function.
These latter formulations were supported by the observations of Lord Walker and
Lord Brown in Sugar (No. 2) (at [83] and [106] respectively).
38. Mr
Knight further argued that the effect of the test propounded by Ms Carrs-Frisk
QC (as set out at paragraph 31 above) was that information necessarily fell
outside the scope of FOIA, even if it was held in relation to the designated
function, where it was also held to a more than de minimis extent in
relation to some non-designated function. This remarkably narrow reading, on
UCAS’s
submissions, would therefore have the effect that only information
relating to the live applications and admissions cycle would fall within the
scope of FOIA, an outcome which by itself must cast doubt on the soundness of
the underlying submissions.
The Upper Tribunal’s analysis and conclusions on Ground 1
39. I agree with Mr Knight that the starting point in this exercise in statutory interpretation must be the principle that FOIA is a constitutionally important piece of legislation, the scope of which must be interpreted broadly. This much is plain from Sugar (No. 2) itself (see Lord Walker at [76] and Lord Mance at [110]), as well as from other decisions of the House of Lords and Supreme Court (see Common Services Agency v Scottish Information Commissioner [2008] UKHL 47 at [4] per Lord Hope and Kennedy v Charity Commission [2014] UKSC 20 at [153] per Lord Sumption). This emphasis on a liberal construction is, to borrow a phrase from a different context of statutory interpretation, the golden thread which runs through the FOIA case law, whether in the rarefied atmosphere of the Supreme Court or on the judicial shop floor at the First-tier Tribunal.
40. Ms
Carrs-Frisk QC placed great emphasis in her submissions on the importance of
protecting UCAS’s
commercial interests, as had been recognised by the
ministerial statements in the debates on the Designation Order. I did not find
those references to Hansard helpful. Even assuming that the criteria in Pepper
v Hart [1993] AC 593 were made out (a matter on which I did not hear
argument), I could see nothing in the Parliamentary debates that provided clear
assistance to deal with the situation where there is an overlap as regards
information that is held both for a designated function and a non-designated
purpose. Politicians, and their civil service speech-writers, are naturally inclined
to see the subject matter of their legislative endeavours in black and white
terms. It falls to courts and tribunals to deal with those more complex
situations involving shades of grey, often not anticipated by those charged
with drafting and piloting legislation through Parliament. I do not doubt the
importance of
UCAS’s
commercial functions. However, the focus of the
Designation Order is necessarily on what is included in terms of
functions of a public nature, not on what is excluded.
41. In
effect, Ms Carrs-Frisk QC sought to persuade me that the primary aim of the
Designation Order was to protect UCAS’s
commercial interests. Standing back for
a moment, that cannot be right. It involves imputing a statutory purpose based
on the narrow (albeit important) perspective of
UCAS’s
own commercial
self-interest. The primary aim of the Order was surely to ensure that bodies of whatever
formal legal status that exercise functions of a public nature are subject to
the same degree of scrutiny under FOIA as ‘ordinary’ public authorities in
relation to those functions and as a result become more open, transparent and
accountable. The
non-designation of
UCAS’s
other functions (e.g. commercial functions) is
necessarily a secondary purpose of the Designation Order. In those
circumstances it seems to me that the golden thread I have referred to must
carry the day in terms of mandating a liberal construction of the legislative
provisions in issue.
42. As
Mr Knight intimated in his opening oral submissions, the First-tier Tribunal
had in effect been faced with a binary choice in its approach to the
construction of the Designation Order. The first possibility was that UCAS
was
right, and
UCAS
was in exactly the same position as the BBC, with the
consequence that where information was held for the designated statutory
purpose it nonetheless fell outside the scope of FOIA if it was simultaneously
held for any significant purpose for
UCAS’s
commercial purposes. The second
option was that the Commissioner was correct in adopting a test based on a
liberal interpretation of FOIA, with the result that so long as the information
was held by
UCAS
to any significant degree for its designated functions, then
the information fell within the scope of FOIA (Decision Notice at [40]-[42], as
approved by the Tribunal at [63]).
43. Against that background, the statutory language of both FOIA and the Designation Order must be construed. The designated function is “the provision and maintenance of a central applications and admissions service in relation to” universities and FE colleges. These are “the functions of the public authority designated by the order with respect to which the designation is to have effect” within the meaning of the first limb of section 7(5) of FOIA. Section 7(5) then goes on to provide that “nothing in Parts I to V of this Act applies to information which is held by the authority but does not relate to the exercise of those functions”.
44. In this context I do not accept Ms Carrs-Frisk QC’s submission that the situation of UCAS
is simply the converse of that of the
BBC. I say that for three reasons. The first is that the statutory language is
materially different. For
UCAS
class=legds> the critical question for
purposes of the present enquiry is whether the information in issue “relates
to” the exercise of a designated function (emphasis added).
The case of the BBC is not on all fours, as the focus under Part VI of Schedule
1 is “in respect of information held for purposes other than
those of journalism, art or literature.” Second, section 7(5) is central to the
understanding of the effect of the Designation Order, but simply has no
relevance in the case of the BBC, where the qualification is self-contained
within the terms of Part VI of Schedule 1. The third reason is concerned with the
conceptual structure of the legislation. The BBC is a public authority for all purposes
under FOIA except where the express exclusion in Schedule 1 operates. As noted
above, however, there is no express exclusion for
UCAS’s
commercial activities.
The focus of the Designation Order is very different, with the express
inclusion of the designated function.
UCAS’s
case requires an express inclusion
(the designated function) to be set against an implied exclusion (commercial
and indeed any other non-designated activities), which is philosophically
different from the exercise required by Schedule 1 in the case of the BBC (an
express inclusion married with an express exclusion of information held for
certain purposes).
45. Plainly,
information which relates exclusively to UCAS’s
commercial functions is outside
the scope of FOIA, as by virtue of section 7(5) “nothing in
Parts I to V of this Act applies to information which is held by the authority
but does not relate to the exercise of those [designated] functions”. The key
to unlocking the effect of the Designation Order is therefore to understand
what is meant by “relates to”. As a matter of its ordinary meaning,
“relating to” is undoubtedly synonymous with “connected with” or “arising out
of” – the fact that R v Smith [1975] QB 531, from which those
alternative formulations by Lord Denning MR were derived, was decided in a very
different context cannot detract from the basic meaning of the expression in
the English language.
46. Closer to home, in the context of FOIA itself, “relates to” has been accorded a similar broad construction, e.g. “some connection between the information” and the relevant body or that “it touches or stands in relation to such a body” (APPGER v ICO and FCO [2012] Info LR 258 at [65]. It is true, of course, that APPGER was concerned with the construction of “relates to” in the context of a substantive exemption, not an inclusion. However, I agree with Mr Knight that it would be surprising if the same words were to be subject to a very different construction in the same statute. Furthermore, it is entirely consistent with the underlying purpose of the statutory scheme that the Designation Order may bring more information within the scope of FOIA but that the exemptions should thereby also cover more information, not least given the dual right enshrined in section 1.
47. It
follows that my conclusion as regards the first and indeed UCAS’s
primary
ground of appeal is that there was no error of law on the part of the Tribunal.
In sum, the Tribunal was correct to approve the formulation advanced by the
Commissioner in the Decision Notice for identifying whether or not information
related to
UCAS’s
designated functions. My principal reasons for reaching this
conclusion are as set out above. In fairness to Ms Carrs-Frisk QC’s elegant submissions, I also deal (relatively briefly) with the following further
arguments.
48. First,
the Tribunal noted that it would have been open to Lord Lucas, or indeed any
other requester, to make a laborious series of separate FOIA requests for the
historic disputed information to individual universities. The Tribunal
expressed the view that an inability to obtain such information from a central
service provider would be “an artificial and erroneous conclusion” (decision at
[77]). I take Ms Carrs-Frisk QC’s point that the respective FOIA obligations of
UCAS
and individual universities are not inter-changeable. However, I agree
with Mr Knight that there remains an obvious overlap, and the fact that the
Designation Order is drafted by references to universities and colleges which
are already within the ambit of FOIA is an aid, albeit not a conclusive aid, to
its construction.
49. Second,
UCAS
put forward a considerable body of evidence to the Tribunal (summarised
before the Upper Tribunal) as to how it organised its functions into “apply
services”, “inform services”, “search services” and “analytical services”. It
sought to argue that the designated function is the live annual applications
and admissions cycle running from September each year through to the beginning
of November in each following year. Fascinating although this material was, I
agree with the Tribunal that the way that
UCAS
defines its business and applies
its information internally cannot be determinative (decision at [75]-[76]). In
the event of disagreement, the proper construction of the Designation Order in
the context of the framework of FOIA is ultimately a matter for judicial
resolution. It is not determined by
UCAS’s
management structures or internal working
practices.
50. Third,
UCAS
relied on dicta to the effect that the courts recognise the importance of
protecting confidential commercial information, vividly described by Rix LJ as
“the life blood of an enterprise” (Veolia v Nottinghamshire County Council
[2010] EWCA Civ 1214 (at [11]). That does not mean, however, either for
UCAS
or
for any other public authority, that information is necessarily outwith the
scope of FOIA if commercial in nature. The simple fact is that there is express
protection for commercial information by virtue of the exemptions in sections
41 and 43 – protection which the Commissioner decided applied in the context of
Lord Lucas’s Request 5. This state of affairs comes nowhere near Bennion’s
“principle against doubtful penalisation” as regards the protection properly
afforded to proprietary rights and economic interests (F. A.R. Bennion, Statutory
Interpretation, 6th edn (2013), pp.749-755 and 764-769).
51. Fourth,
and finally, UCAS
argued that the Tribunal erred in law by holding that the
presence of the existing exemptions in FOIA was relevant to the construction of
the Designation Order (decision, [71]). This, Ms Carrs-Frisk QC submitted, was
despite a similar argument being rejected by the Supreme Court in Sugar (No.
2). However, I agree with Mr Knight that the fact that the Supreme Court
declined to read the exclusion of the BBC’s journalism (etc.) purpose narrowly
in the light of the substantive FOIA exemptions does not entitle
UCAS
to read
from that a general principle that the remainder of the Act, including the
exemptions, is irrelevant to the construction of both section 7 and the
Designation Order. It is a basic tenet of statutory interpretation that
legislation should be construed as a whole. In addition, the Supreme Court in Sugar
(No. 2) were plainly exercised in that context both by the engagement of
Article 10 and by the absence of any directly applicable journalism exemption
in Part II of FOIA (contrast Data Protection Act 1998, section 32).
Ground 2: the “dominant purpose” test
52. Without
prejudice to its first and principal ground of appeal, UCAS’s
fall-back
position was to argue that the correct approach was to apply the “dominant
purpose” test (or, as it had been labelled before the Tribunal below, the
“predominant purpose” test; it seems to me nothing turns on which of the two
terms is used here). In other words, is the “dominant purpose” for which the
information is held the function for which
UCAS
is designated under the
Designation Order, or is it for some other (e.g. commercial) function or
purpose? On this analysis, if the latter is the case then the information in
question falls outside the scope of FOIA.
53. UCAS
acknowledged that the “dominant purpose” test did not find favour with the
Supreme Court in BBC v Sugar (No. 2), with the exception of Lord Wilson
(dissenting). However, in relation to this ground of appeal,
UCAS
argued that
the Supreme Court was concerned with a different exclusion. If the Tribunal
concluded, as it had here, that the starting point, legislative purpose and
focus of the statutory language in the cases of the BBC and
UCAS
were
different, then it followed there was no reason why the Supreme Court’s
(majority) rejection of the “dominant purpose” test should necessarily apply
here. On that basis, it was open to the Tribunal to conclude that a “dominant
purpose” test was a sensible approach (in effect, an intermediate position or
half-way house), which was also consistent with the intention underpinning the
Designation Order. Furthermore, the “dominant purpose” test has been adopted in
civil proceedings where issues have arisen over the disclosure of documents
(see e.g. Waugh v British Railways Board [1980] A.C. 251 and Peach v
Commissioner of Police of the Metropolis [1986] QB 1064).
54. On
the face of it I acknowledge that the Tribunal dealt with this submission by
UCAS
rather peremptorily. Its decision simply recorded that “The Tribunal
declines
UCAS’s
suggestion that it adopts the ‘predominant purpose’ test that
failed before the 4-1 majority in the Supreme Court” (decision at [73]).
However, in the circumstances that was sufficient. As Mr Knight put it in oral
argument,
UCAS
was effectively seeking to “breathe life into the hitherto
deceased corpse of the dominant purpose test”. This was not a case in which the
Supreme Court’s decision in BBC v Sugar (No. 2) had been ignored. On the
contrary, the Tribunal had accepted the Commissioner’s arguments as to the
meaning and application of Sugar (No. 2) in a different but related FOIA
context. Indeed, the wording of the test adopted by the Tribunal deliberately
echoed the judgments in Sugar (No. 2) (see paragraph 20 above). Given
that the present case is in broadly the same sort of territory as Sugar (No.
2), and the Tribunal’s careful consideration of, but rejection of,
UCAS’s
principal argument as to the correct legal test, it is unsurprising that this
alternative submission was dealt with rather summarily.
55. Further, I do not regard decisions such as Waugh and Peach of any real assistance in the present context, given that FOIA is a freestanding statutory code on access to information held by public bodies. It is far more in point, as Mr Knight observed, that in an earlier case I too had similarly declined to adopt the “dominant purpose” test in another FOIA context (as to whether information is “held”): see University of Newcastle v Information Commissioner and BUAV [2011] UKUT 185 (AAC); [2011] 2 Info LR 54 – a case in which I note that the University was granted permission to appeal to the Court of Appeal but which appeal was in the event not pursued. It follows that I reject the second ground of appeal.
Ground 3: did the disputed historical information “relate to” the designated function?
56. UCAS’s
third ground of appeal was that the Tribunal had erred in law in deciding that
the disputed historical information “related to” the designated function. The
Tribunal had concluded that the disputed historical information “relates to
some significant degree and not de minimis to the designated Function.
There is a sufficiently direct link, sufficient proximity, between the
information and the ‘provision and maintenance of a central applications and
admissions service’ to engage FOIA as applied by the Designation Order”
(decision at [76]).
57. Ms
Carss-Frisk QC submitted that in doing so the Tribunal had applied the wrong
test for determining whether the information “related to” the designated
function, namely one of “being connected with or arising out of” that function
(see decision at [74]). This test, she submitted, was far too wide and ran
counter to the policy behind the Designation Order. Furthermore, it was said,
the Tribunal had wrongly relied both on the availability of exemptions as an
aid to construction and the fact that it would be open to a requester (if
laborious) to seek the historic disputed information from individual
universities. Finally, Ms Carss-Frisk QC argued, the Tribunal had failed to
explain why it did not accept the detailed evidence of UCAS’s
witnesses on this
point.
58. I
was not persuaded by this analysis. I have already found that the Tribunal
correctly identified the relevant test to be applied in the light of Sugar
(No. 2), as set out at paragraph 20 above. For present purposes the key
question was therefore stage 1 of the three-part test it identified, namely 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
is also held in relation to other (possibly more important) functions?”
(decision, [63(1)]).
59. Having
applied the correct legal test, the conclusions that followed were ultimately
questions of fact for the Tribunal to decide. The Tribunal plainly had to
consider all the evidence in the round. Its considered view was that there was
a sufficient link between the information in question and the “provision and
maintenance of a central applications and admissions service”. The Tribunal
correctly explained that the test was not simply the managerial purpose to
which UCAS
applied the information, as the Designation Order was not defined in
terms of whether the information was “held for” a particular institutional
purpose within
UCAS.
It was apparently accepted by one of
UCAS’s
witnesses in
the course of oral evidence that the historic data was needed from time to time
in the course of carrying out the Designated Function. Mr Knight very fairly
recognised that this passage in the Tribunal’s decision was “not the most fully
reasoned”. However, it is unrealistic to expect a Tribunal to set out every
single twist and turn in its assessment of the evidence and in its
consequential reasoning. As Lord Hope DPSC observed in R (Jones) v
First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19, the Upper Tribunal
“should not assume too readily that the tribunal misdirected itself just
because not every step in its reasoning is fully set out in it” (at paragraph
25). The question is rather whether the Tribunal has done enough to show that
it has applied the correct legal test and in broad terms explained its
decision, which in my view this Tribunal did.
Conclusion
60. It
follows that I dismiss UCAS’s appeal to the Upper Tribunal. The decision of the
First-tier Tribunal, upholding the Information Commissioner’s Decision Notice
FS50453565, therefore stands.
Signed on the original Nicholas
Wikeley
on 11 December 2014 Judge of the Upper Tribunal