Approximately 130,000 organisations are covered by the Freedom of Information Act 2000 (FoI). Section 5 of the act allows additional organisations to be added to the list by way of a ministerial order. The criteria are that they must exercise public functions or provide contracted out public authority functions.

The first section 5 order came into force on 1 November 2011. The Freedom of Information (Designation as Public Authorities) Order 2011 brings three organisations within the scope of the FoI regime: the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service. There is nothing surprising about this as the decision had already been made by the Labour government in 2009 in a response to a consultation on extending the act.

On 7 January, the Ministry of Justice announced its intention to consult 20 organisations, which are believed to perform functions of a public nature, with a view to adding them to the list of public authorities. These include examination boards, the Law Society and the Bar Council. There is still no news on the outcome of this exercise. In November 2011, in an answer to a parliamentary question, justice minister Jonathan Djanogly announced that the Housing Association and the Housing Corporation would be consulted in 2012.

He also said: ‘We have begun consultations with more than 200 further bodies about their possible inclusion.’ Following a FoI request by the Campaign for Freedom of Information (CFoI), the MoJ has disclosed further details of these bodies. The list includes more than 150 ‘awarding bodies’ and over 200 harbour authorities. It can be downloaded from CFoI.

FoI also applies to a ‘publicly owned company’, which is defined in section 6. This definition will be amended by the Protection of Freedoms Bill (currently going though parliament). FoI will no longer only apply to bodies wholly owned by a public authority, but also to those wholly owned by ‘the wider public sector’. The effect of this amendment is that even where a publicly owned company is owned by more than one public sector organisation, it will be subject to the act in future. Again, thanks to the work of the CFoI, the MoJ has also provided a list of the companies it believes are likely to be brought within the scope of the act by this amendment. Its research has identified, among others, companies running crematoria, parks and airports, as well as a number of shared purchasing and services companies. All organisations that work with or advise these companies need to start raising awareness of the act and its obligations.

In September it was widely reported that the education secretary Michael Gove and department for education officials had routinely used personal email accounts to discuss official, often controversial, department business. Apparently this was done in the belief that such emails would not be disclosable pursuant to a FoI request.

The information commissioner has now produced detailed guidance on this issue. He advises that FoI applies to official information held in private email accounts when held on behalf of the public authority. This includes text messages. There will be occasions on which, having searched its own systems, the public authority will be expected to ask employees or others (such as contractors) to search their personal email accounts/text messages for information described in a FoI request. Public authorities should establish procedures for dealing with such situations and keep records of any private email account/text message searches they have requested. Other key points set out in the guidance include:

  • Where a public authority has decided that a relevant individual’s email account may include official information which falls within the scope of the request and is not held elsewhere, it will need to ask that individual to search their account.
  • Where individuals are asked to check private email accounts, there should be a record of the action taken. The public authority needs to be able to demonstrate, if required, that appropriate searches have taken place.
  • Public authorities should remind staff that deleting or concealing information with the intention of preventing its disclosure following receipt of a request is a criminal offence under section 77 of the act.
  • It is accepted that, in certain circumstances, it may be necessary to use private email for public authority business. There should be a policy which clearly states that in these cases an authority email address should be copied in to ensure the completeness of the authority’s records.

Squatters roadmap?

Access to information about empty properties under FoI has always been a contentious issue. On the one hand, local authorities holding such information claim that, if released, the properties will be targeted by squatters, criminals and drug addicts. They claim the information is exempt under section 31 (disclosure would be likely to prejudice the prevention or detection of crime). On the other hand, housing charities argue that it is unjust that there are thousands of people living on the streets next to properties which they could easily and cheaply occupy. The charity Empty Homes says that while there are about 930,000 unused properties across the UK, there are two million families on waiting lists for social housing.

There have been a number of decisions over the years by the information commissioner and the First Tier Tribunal (Information Rights) (formerly the Information Tribunal) on this issue. In Mr C P England and London Borough of Bexley v Information Commissioner (EA/2006/0060 & 0066), the Information Tribunal reviewed the decision of the information commissioner to order Bexley Council to disclose the details of all empty properties in its area, together with the reasons why the properties are empty, and who owns them. The tribunal ruled that those properties owned by anyone other than individuals should be disclosed together with details of ownership. While it accepted, contrary to the commissioner’s view, that the section 31 exemption was engaged, it ruled that the public interest in disclosure was greater. However, details of properties owned by individuals should not be disclosed because it was personal data and exempt under section 40. Disclosure of this information would be unfair to the individuals because their properties could be targeted by criminals and squatters.

A more recent decision by the First Tier Tribunal (Voyias v IC and LB Camden (EA/2011/0007)) ordered Camden Council to disclose, to a former member of the Advisory Service for Squatters, lists of empty properties meeting certain descriptions. He specifically excluded properties owned by individuals. The tribunal found that, while the section 31 exemption was engaged, the public interest in bringing empty properties back into reuse was paramount. The key passage of the judgment is: ‘The tribunal is satisfied that publication of this list would bring a proportion of the void properties back into use earlier than would otherwise be the case and that consequently this is a strong public interest factor in favour of disclosure… The tribunal is satisfied that there is already a lively and informed debate in this area, but recognises that specific examples provide colour and are important in increasing public understanding and local involvement. It puts the specific empty properties into the limelight, may be an added tool to incentivise owners to reuse their properties and would enable the general public to walk up to a "void", and see for themselves what is going on, whether it is being worked on, or has been left in limbo.’

The government is not happy. Housing minister Grant Shapps has condemned the judgment as a ‘squatter’s roadmap’. However, the tribunal has recognised the unfairness of the current system and the need to inform a debate of importance, especially in the current economic climate. My sources tell me that Camden Council is appealing this decision to the Upper Tribunal. The appeal is likely to be heard in April. One to watch.

Ibrahim Hasan is a director of Act Now Training. Follow him on Twitter.