s1, s3 FOIA

Reg 3(1), reg 5(1) EIR

Issue Should an executive agency be regarded as a separate public authority?
Line to take:

An executive agency has no independent legal status – a public authority comprises the parent department and all its executive agencies – but in most cases where a request is made to the agency it is acceptable to regard the request as being made to the agency and not the parent government department as a whole. On the other hand, requests made to the parent department should not automatically exclude information held by its executive agencies.

As applicants cannot be expected to know where information is held within a government department, in cases where the requested information may be held by both the parent department and an agency (or agencies) – whether the request is made to the department or to the agency – it is important for the public authority to go back to the applicant and clarify the extent of the request.

Further Information:

(1) Requests made to the executive agency.

By their very existence executive agencies are likely to have specific functions and will often appear to the public as stand-alone organisations. Consequently, where a request is made to the agency, and the focus of the request is clearly information held by the agency, it is acceptable for the agency to limit the scope of the request to information it holds and not to consider information that may be held by its parent department even though legally it is the department as a whole that is the public authority. For example, where a request is made to the Insolvency Service for information clearly relating to insolvency matters, it is likely to be acceptable that the scope of the request is limited to information held by the Insolvency Service and not to encompass the parent department (Department for Business, Innovation and Skills).

For decision notices the details of the agency can be provided under ‘Public Authority Address’ with the name of the parent department in brackets. In the section entitled ‘The Request’, a statement can be included to say that ‘The Information Commissioner notes that [name of agency] is not a public authority in its own right but is an executive agency of [name of parent department]. Therefore, the public authority in this case is [name of parent department]. For the purposes of this decision notice [name of agency] is referred to as if it were the public authority.’

There are practical reasons for adopting this approach, but also policy reasons. For example, if an agency, on receipt of a request for information, was always expected to consider information held by the parent department as a whole, this increases the chances (in the cases of requests under FOIA) of the request being refused on section 12 cost grounds due to the cost of carrying out an unnecessarily wide-ranging search. Clearly, this could limit the amount of information that is disclosed under FOIA.   

There will be cases where a request is made to the agency which is more general in nature and does not have the agency as its focus. It may be that the information is likely to be held by the parent department in which case the request can easily be redirected, but if the scope of the request clearly covers information held by both the department and the agency, the public authority – this could be someone either from the agency or the parent department – should contact the applicant in order to clarify what information is of interest.

(2) Requests made to the parent government department.

In general, a request made to a government department should be considered as a request to all constituent parts of the department and so include any executive agencies, i.e. agencies should not automatically be excluded from the scope of the request as applicants cannot be expected to be aware of all the constituent parts of the department. Much will depend on the wording of the request as this will determine the parts of the department that are covered by the request and which may include the executive agencies. As with any large public authority, it is a question of selecting the appropriate business areas in which to search for the information covered by the request.  

However, as with a request to an executive agency, an applicant cannot be expected to know whether the requested information is held by both the department and the agency or just the parent department. In cases where information may be held by both the parent department and the agency, the public authority should contact the applicant in order to clarify the request.

In all cases where either of the above scenarios is relevant, it is important that both the public authority – in considering what information is caught by the request and where it is located – and the Commissioner – in assessing the extent of the search undertaken by the public authority – clarify the scope of the request.

Note: There are some executive agencies that are also government departments in their own right, for example the National Archives (an agency of the Ministry of Justice) and the Ordnance Survey (an agency of the Department for Communities and Local Government). In such cases clearly there is no obligation to consider the ‘parent’ department as the agencies are public authorities in their own right by virtue of them also being government departments.   

Source Details
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Date 11/03/2011 Policy Reference