Line to take - LTT12 - Official Receivers

From FOIwiki
Jump to: navigation, search
  • FOI/EIR: FOI
  • Section/Regulation: s3
  • Issue: Official Receivers
  • Source: Legal Advice
  • Details: N/A
  • Related Lines to Take: LTT10, LTT11
  • Documents: FS50083375 (no DN), FS50077720 (no DN)
  • Contact: EW
  • Date: 29/08/2006
  • Policy Reference: LTT12
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

When acting as statutory office holders, official receivers are not public authorities, and not subject to the Freedom of Information Act.

Further Information

Official receivers are statutory office holders (people appointed to an office by virtue of an enactment) and an officer of the court to which they are attached. They are also civil servants employed by the Insolvency Service who act on directions, instructions and guidance from the Inspector General of the Insolvency Service or, less frequently, the Secretary of State (DTI). On appointment, official receivers simultaneously become civil servants and statutory office holders.

When acting as statutory office holders, official receivers are not subject to the Act because they are not listed in schedule 1. As statutory office holders, official receivers are accountable to the court in respect of those actions, and courts are not themselves public authorities.

Official receivers duties as statutory office holders are largely set out in the Insolvency Act 1986. These duties include those performed as a provisional liquidator, liquidator, receiver and manager, trustee, nominee in a FTVA (Fast Track Voluntary Arrangement) or a supervisor in a voluntary arrangement.

The Insolvency Service is subject to the Act and, when acting as civil servants and not as statutory office holders, information created or obtained by official receivers will be subject to the Act.

Information held by official receivers in their capacity as civil servants and therefore subject to the Act will include information relating to the management of staff. More importantly, the Act will also apply where the official receiver is acting on the specific instructions or carrying out delegated functions of the Secretary of State. This will include cases where an authority to proceed has been granted in a compulsory liquidation or in a BRO (Bankruptcy Restriction Order) case or where a prosecution report has been accepted in a bankruptcy.

Information held by official receivers will be subject the Act if they are acting both as a statutory office holder and for the Secretary of State. This will include cases in which work is being carried out with a view to establishing unfit conduct in a voluntary liquidation.

The Insolvency Service website provides an example of the difference between acting as a statutory office holder and as a civil servant: “An example of the distinction between when the official receiver acts as a statutory office holder and when he acts as a civil servant is when he sends to a company director or bankrupt a Preliminary Information Questionnaire and an appointment letter to attend for interview. The official receiver does this as part of his statutory investigatory duty under section 132 or section 289. However, when sending leaflets to aid the recipient (e.g. ‘What happens when you attend the official receiver’s office’ and ‘A guide to bankruptcy’ or a ‘Guide to directors’) the official receiver is acting as a civil servant.”

(http://www.insolvency.gov.uk/freedomofinformation/technical/TechnicalManual/Ch1-12/Chapter1/part2/part_2.htm)

The arguments above are those proposed by the Insolvency Service. The Information Commissioner accepts and agrees with this approach.

The Insolvency Service’s approach can be read in full at:

http://www.insolvency.gov.uk/freedomofinformation/technical/casehelpmanual/F/FreedomDataProtection.htm

In summary:

  • Information created or obtained by Official Receivers but in the possession of the Insolvency Service will be caught by the Act if it has been sent to the Service for its own use by official receivers or was created by them acting as officials of the Service rather than statutory office holders.
  • Information which is stored on Insolvency Service systems or held in manual files but was created or obtained by Official Receivers acting as statutory officer holders will simply be held by the Service on behalf of the Official receivers and will not be subject to the Act.

In practical terms, COs should establish what the information being requested is and why it was created. This should not, in fact, be difficult. Information relating to an individual’s bankruptcy and held by an official receiver for example (which is the information most frequently requested) is not subject to the Act.