Dr Jesús Antonio Siller Farfán v The Information Commissioner & Anor

Under Freedom of Information Act 2000, the inquiry under section 3(2)(a) should ordinarily separate two questions: whether the public authority holds the information and, if so, whether it holds it otherwise than on behalf of another person. Where holding is undisputed, the focus is on the nature of the connection between the authority and the information, particularly the capacity in which the information was acquired or generated. The relevant connection is qualitative, not a question of rationality, sufficiency or the authority’s general interest in the information. Information held by an agent for a third party will normally fall outside the Act, unless the authority also holds it to some extent on its own behalf. The First-tier Tribunal’s use of imperfect terminology did not amount to an error of law where its substance was correct and its factual conclusion was open to it.

The appellant requested communications relating to Queen’s University Belfast sent or received by the vice-chancellor of the University of Central Lancashire. The University held the communications on its information systems because the vice-chancellor was also deputy chair and a director of the University and Colleges Employers Association.

The University refused the request on the basis that it did not hold relevant information for the purposes of Freedom of Information Act 2000. The Information Commissioner upheld that decision. The First-tier Tribunal dismissed the appellant’s appeal, finding that the information was held solely on behalf of UCEA or the vice-chancellor acting in his UCEA capacity: [2024] UKFTT 00896 (GRC).

The appeal concerned the proper approach to “held” and “on behalf of” under section 3(2), and whether the First-tier Tribunal had erred in applying that approach or had reached a perverse factual conclusion.

1. The appeal was dismissed. The First-tier Tribunal’s decision did not involve an error of law.
2. Section 3(2)(a) operates as an exclusion from the general scope of section 1(1)(a). The statutory inquiry is whether the public authority holds the information and, if so, whether it holds it otherwise than on behalf of another person. Information held on behalf of another falls outside the Act only where it is held solely on that person’s behalf. The approach in BUAV v IC and Newcastle University [2011] UKUT 185 (AAC) remained correct and had been followed in Department of Health v The Information Commissioner [2017] EWCA Civ 374.
3. “Holds” is an ordinary word. It normally includes information physically possessed by an authority and electronic information on its devices, servers or cloud facilities. In unusual cases, the nature of the connection may assist in deciding whether the authority holds the information at all.
4. Where holding is established, the focus is on “on behalf of”. The relevant assessment is qualitative. It concerns whether the nature of the connection was intended to bring the information within the Act, rather than the quantum or sufficiency of the connection. A rational connection, or a general interest in information arising from control of information systems, security obligations or reputational concerns, is insufficient. The approach based on an authority’s “interest” in The Scottish Ministers v The Scottish Information Commissioner [2023] CSIH 46 and the corresponding reasoning in Ian Graham v The Scottish Information Commissioner [2019] CSIH 57 were doubted.
5. Agency is a significant example. Information held by an agent for a third party will ordinarily be outside section 3(2)(a), while information held by an agent for the public authority may fall within section 3(2)(b). But correspondence sent to an authority will not normally be held solely on behalf of the sender merely because it was received from that person.
6. Although the First-tier Tribunal referred to “sufficient connection” and expressed its question imperfectly, its reasoning focused substantively on whether the University held the information to any extent on its own behalf. It was entitled to focus on the capacity in which the vice-chancellor generated and received the communications. He acted solely as UCEA’s agent or representative, and there was no evidence that the University had passed on or used the information for its own purposes. Its conclusion was therefore open to it and was not perverse.

• Upper Tribunal (Administrative Appeals Chamber) dismissed the appeal and held that the First-tier Tribunal had not made an error of law.
• First-tier Tribunal (General Regulatory Chamber) dismissed the appeal against the Information Commissioner’s decision: [2024] UKFTT 00896 (GRC).
• Information Commissioner issued Decision Notice IC-260483-T4L2 on 26 January 2024, deciding that the University did not hold information within the scope of FOIA.