I note that the First-tier Tribunal has recently had to school the Information Commissioner’s Office (ICO) on one of the real basics of the Freedom of Information Act (FOIA).
A request had been made to the Parliamentary and Health Service Ombudsman (PHSO) for past versions of a Joint Working Team (JWT) Manual setting out how the PHSO and the Local Government and Social Care Ombudsman (LGSCO) should work together. Rather oddly, the PHSO searched for these, and couldn’t find them. More oddly, the PHSO decided that this meant that it didn’t “hold” the information, for the purposes of FOIA (and directed the requester to LGSCO). Even more oddly, the ICO then upheld the PHSO’s refusal, saying
Copies of the JWT manuals are stored on the LGSCO website and the PHSO argue that it has no control over the production of the manual. The Commissioner is therefore satisfied that the PHSO do not hold copies of the JWT manuals published in March and June 2019
I use the word “oddly”, because one of the first thing FOIA practitioners and lawyers learn is that whether information is “held” for the purposes of FOIA turns on two situations – namely, whether
(a)it is held by the authority, otherwise than on behalf of another person, or
(b)it is held by another person on behalf of the authority.
If either of those applies, then information is held.
In this case, as Her Honour Judge Shanks realised very quickly, when the requester appealed the ICO decision to the First-tier Tribunal, surely a joint working manual, setting out “guidance on key processes and on jurisdictional and policy considerations which have been agreed by the two Ombudsmen”, would be held by both offices? And, if copies were not physically held by the PHSO, any copies physically held by the LGSCO would be held on behalf of the PHSO. Furthermore, HH Judge Shanks noted
Indeed, leaving aside any technical arguments I am puzzled as to why the PHSO did not just get hold of the documents from the LGSCO and pass them over to Mr McDougall, thereby saving a great deal of unnecessary time and expense.
The ICO has good guidance for public authorities on this very topic. Let’s hope they refer to it themselves in future similar cases.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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