Line to take - LTT158 - Functions exercised for specified purposes under section 31

• FOI/EIR: FOI
• Section/Regulation: s31(1)(g), s31(2)
• Issue: Functions exercised for specified purposes under section 31
• Source: Policy Team; Decision Notices; HL Decision
• Details: Hazell v Hammersmith & Fulham London Borough Council (24 January 1991 House of Lords decision)
• Related Lines to Take: LTT55, LTT184
• Related Documents: Explanatory notes (FOI Act), [1991] 2 WLR 372 & [1992] 2 AC 1 (Hazell), FS50210000
• Contact: GF/HD
• Date: 19/11/2010
• Policy Reference: LTT158
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

In order for the exemption to be engaged, the Commissioner requires the function identified by the public authority for the purposes of section 31(1)(g) to be a function which is:

(i) designed to fulfil one of the purposes specified in s31(2) and,

(ii) imposed by statute (or in the case of a government department, authorised by the Crown) and,

(iii) specifically entrusted to the relevant public authority to fulfil (rather than just a general duty imposed on all public authorities).

The Commissioner does not accept that this exemption may be engaged where the functions identified by the public authority have not been specifically imposed on that authority by statute (or in the case of a government department, by the Crown).

Further Information

Section 31(1)(g) states that information which is not exempt under s30 will be exempt if disclosure would, or would be likely to, prejudice —

"...the exercise by any public authority of its functions for any of the purposes specified in subsection (2)".

However, the Act does not define the term ‘function’ and nor does it set out how the terms ‘function’ and ‘purpose’ inter-relate. As such, there would seem to be two ways in which this exemption can be interpreted - either that the exemption may be engaged where any function is being exercised provided it is being exercised for one of the specified purposes or alternatively that the exemption may only be engaged where the function being exercised is a function designed for the specified purpose.

The Commissioner had previously adopted the first interpretation but this issue has recently been raised in casework and the Commissioner has taken this opportunity to reconsider the matter and has looked at the following for clarity.

Explanatory Notes

The explanatory notes which accompany the Act say in relation to section 31(1)(g) as follows-

"This subsection essentially protects the conduct of investigations and proceedings which may lead to prosecutions, ..."

Whilst this is not particularly conclusive of the interpretation to be taken, it goes to show that the intention behind the drafting was concerned with protecting those activities which would lead to prosecutions.

Case-law

The House of Lords considered the meaning of the word ‘function’ in the case of Hazell v Hammersmith & Fulham London Borough Council which questioned whether 'swap transactions' facilitated, were conducive or incidental to the Council’s acknowledged function of borrowing under s111 of the Local Government Act 1972. Lord Templeman provided the following important quote at page 23:

"...in section 111 the word ‘functions’ embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions..."

This provides for a wide interpretation of the term ‘functions’ to include an authority’s powers and duties and although Lord Templeman was speaking with specific reference to s111 LGA 1972, the Commissioner considers that this interpretation can be applied to other legislation which refers to functions such as s31(l)(g) FOJA. However, the Commissioner considers that this wide interpretation has been limited by the phrase — "the sum total of the activities Parliament has entrusted to it".

Firstly. Lord Templeman has referred to “activities”. The Commissioner considers that this refers to a positive duty on a public authority rather than an obligation imposed on all public authorities, for example, the Health and Safety Executive's activities involve promoting health and safety, investigating accidents etc. Therefore material regarding these activities would constitute information about its functions. In contrast, the HSE also has obligations, as do other public authorities, to manage its human resources but this could not be said to be its (main) activity and therefore one of its functions.

Secondly, Lord Templeman referred to the sum total of the activities that Parliament had entrusted to 'it'. This goes to suggest that the relevant functions are only those which are specifically entrusted to that particular authority rather than general activities entrusted to all authorities i.e. HMRC is specifically entrusted with revenue collection and enforcement activities but is not specifically entrusted with managing, for example, its human resources.

Wording of the Exemption

Sections 31(2)(a) to (e) include the word "ascertaining". The Commissioner considers that this means to determine definitely or with certainty and thus in this context means that the public authority should be empowered to make, rather than merely have input into, the decision in question. In relation to s31(2)(a), for example, although a local Council may have the power to conduct an internal investigation into whether an employee has committed a theft, it is not the public authority that has been empowered to “ascertain” whether any persons have failed to comply with the law. Instead the Council would have to pass the matter to the police and later the Crown Prosecution Service and the Courts and it is these parties who have been empowered to “ascertain” whether the law had been broken.

Accordingly, the Commissioner finds that the use of the word “ascertaining” limits the application of this exemption to those cases where the authority, in relation to whom the prejudice is being claimed, has the power to formally ascertain compliance with the law, judge whether any person’s conduct is improper etc and the Commissioner acknowledges that this is likely to limit the use of these limbs of the exemption to law enforcement or regulatory bodies e.g. the police, FSA, Solicitors Regulation Authority, the Civil Service Commissioners.

However, it should be noted that the exemption refers to functions being exercised “by any public authority”. This means that the prejudice does not have to relate to the public authority who is dealing with the request but can relate to another public authority who is exercising a function for a relevant purpose, for example, where a police investigation is in prospect or is being carried out at the same time as the public authority is carrying out its own internal investigation, then the public authority could claim the exemption in relation to the prejudice that would or would be likely to be caused to the police investigation. The Commissioner would expect this type of scenario to be evidenced appropriately and he would adopt a similar approach to that set out in LTT55 in respect of accepting arguments from a public authority claiming a prejudice on behalf of another authority.

* A casework example for s31(2)(a) and (b) has been provided at the end of the line.

Section 31(2)(f) & (g) refer to “protecting” charities against mismanagement and “protecting” the property of charities from loss or misapplication respectively. The Commissioner considers that the term ‘protection’ has a different quality and requires different considerations than the term ‘ascertain’ but that nonetheless in order to claim either section 31(2)(f) or (g), the public authority needs to be formally tasked with ‘protecting’ a charity against misconduct / mismanagement and from loss or misapplication of charity property.

As such, the Charity Commission is the public authority in relation to which the prejudice is most likely to be claimed although the Commissioner would still expect the relevant function which would or would be likely to be prejudiced to be identified. For example, where the Commission has sufficiently serious concerns about possible misconduct or mismanagement in the administration of a charity or where it is necessary to protect or secure the charity or its assets from loss, damage or misuse, it may commence a formal inquiry under s8 of the Charities Act 1993 (as amended). Opening an inquiry allows the Commission to exercise its powers under s18 of the Charities Act which includes the power to, for example, suspend a trustee or vest charitable property with an official custodian and thus it may be argued that disclosure of the requested information would or would be likely to prejudice the exercise of these powers.

However, the Charity Commission’s remit does not extend to investigating allegations of criminal behaviour or queries over taxation, instead it will refer the matter to the appropriate (law enforcement) agency. Again, as above, it should be noted that the exemption refers to functions being exercised "by any public authority".

Thus, for example, if a police investigation is in prospect or progress then the Charity Commission could claim that disclosure would or would be likely to prejudice the police investigation or another public authority could claim a prejudice to the Charity Commission’s functions (provided these claims were evidenced appropriately).

Where sections 31(2)(f) and (g) are claimed by public authorities other than the Charity Commission, then the public authority needs to be provide comprehensive arguments as to how the exemption can be engaged.

Section 31(2)(h) refers to "recovering" the property of charities. The intention behind this subsection is not entirely clear but the Commissioners initial view as to how this subsection could be applied is as follows: -

Where a charity has suffered loss, for example, via fraud or theft, the charity’s trustees should inform the relevant law enforcement body, such as the police. The police may carry out an investigation and a prejudice could be claimed to the prospective or ongoing police investigation if the police seek to recover the misappropriated assets. In order to be convinced the exemption was engaged in this way, the Commissioner would expect the arguments to be adequately evidenced, in particular, that the police would or are in the process of seeking to recover the charity’s property.

This exemption could also be theoretically claimed by the limited number of charities who are also a public authority for the purposes of FOI if they are able to demonstrate that they are seeking to issue or are pursuing Civil proceedings to recover the misappropriated funds or property. However, the charity would need to point to the relevant statutory provision which requires them to recover any assets or funds.

If the affected charity has taken legal action against the perpetrator and sought to recover its property, then it is unlikely that the Charity Commission will take any further action as it is a risk based and proportionate regulator. However, where the issues raised are sufficiently serious or complex to warrant the opening of a statutory inquiry under section 8 of the Charities Act 1993. as detailed above, the Charity Commission has the power under s18(6) of the Charities Act 1993 to "...make any such order with respect to the vesting in or transfer to the charity trustees of any property as the Commissioners [now Commission] could make on the removal or appointment of a charity trustee". Were the Charity Commission to claim this exemption, the Commissioner would require substantive arguments as to the how this 'vesting' or 'transfer' amounts to a recovery in order to engage the exemption.

Section 31(2)(i) refers to "securing" the health and safety of persons at work. In line with the approach adopted above, the Commissioner considers that the terms “securing” has a different quality than the term “ascertaining” but that nonetheless, in order for this exemption to be claimed, the relevant public authority must be formally and specifically tasked with securing health and safety.

As such, the Health and Safety Executive (HSE) is the public authority in relation to which the prejudice is most likely to be claimed on the basis that the HSE enforces the Health and Safety Act 1974 of which Part 1 states that the "provisions of this Part shall have effect with a view to (a) securing the health, safety and welfare of persons at work". Section 13 of the 1974 Act states that the Health & Safety Executive shall have the power to do anything which is "calculated to facilitate, or is conducive or incidental to, the performance of its functions".

The Commissioner also acknowledges that section 2 of the 1974 Act refers to the duty on every employer to ensure the health and safety of its employees. However, in line with the Commissioner’s interpretation of Lord Templeman’s comments above, the general duty under section 2 does not amount to an "activity" that has been specifically entrusted to any one particular public authority. Thus the Commissioner is unlikely to find that the exemption is engaged on the basis of section 2 unless the authority can provide details of the legislation which specifically imposes a positive duty on it, beyond the general duties imposed upon all public authorities.

Section 31(2)(j) refers to “protecting” persons other than persons at work against risks to their health and safety arising out of actions of persons at work.

In line with the approach adopted above, the Commissioner considers that the term “protecting” have a different quality than the term “ascertaining” but that nonetheless, in order for these limbs of the exemption to be claimed, the relevant public authority must be formally and specifically tasked with protecting health and safety. As in relation to s31(2)(i), the HSE is the public authority in relation to which the prejudice is most likely to be claimed on the basis that the HSE enforces the Health and Safety Act 1974 to which Part 1 states that the "provisions of this Part shall have effect with a view to... (b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work". Section 13 of the 1974 Act states that the Health & Safety Executive shall have the power to do anything which is "calculated to facilitate, or is conducive or incidental to, the performance of its functions".

The Commissioner also notes that section 3 of the 1974 Act says that "it shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety". As in relation to section 31(2)(i), the Commissioner is unlikely to find that any public authority will be able to successfully claim this subsection unless the authority can point to a statutory obligation which has been specifically imposed upon it, rather than a general obligation, to protect the health and safety of those who may be affected by the actions of its employees.

However, the likely exception to this approach will involve healthcare authorities who have specific duties, above and beyond the Health and Safety Act, to protect the health and safety of patients from the more obvious and direct risks posed by the healthcare industry, for example, s45(1) of the Health and Social Care (Community Health and Standards) Act 2003 places a duty on all NHS bodies to "...put and keep in place arrangements for the purpose of monitoring and improving the quality of health care provided by and for that body".

Conclusion

In light of the above, the Commissioner considers that the second interpretation of the way in which this exemption can be interpreted is the more appropriate. Thus in order to engage the exemption, the Commissioner will expect the function identified by the public authority as being likely to be prejudiced by the proposed disclosure to be a function which can only be exercised by the public authority for one of the purposes specified in 31(2)(g). That is to say, the exemption does not apply where the function in question is a general function of the public authority which it has decided to exercise for one of the specified purposes.

Case-work Example for Section 31(2)(a) and (b)

FS50210000 (June 2010)

An external contractor, EduAction Ltd was employed by the Council to run its education services. The contractor was paid £240,000 to reduce exclusions from schools in targeted areas of the borough but in 2006 whistleblowers reported that the contractor had not used the money for the intended purpose. The Council’s audit and anti-fraud team investigated and produced a report. The complainant requested a copy of that report. Amongst other exemptions, the Council claimed s31(1)(g) by virtue of s31(2)(a) and s31(2)(b).

The Council argued that-

• the investigation was a necessary part of its duties to manage and protect public funds under s151 Local Government Act 1972,
• the Council also cited s111 Local Government Act which states that "...a local authority shall have the power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions" and
• the Council also added that systems of internal control were required by the Accounts and Audit Regulations 2003 (as amended)

Para 23 of the notice states as follows:

having examined the three pieces of legislation ... in his [the Commissioner's] view all organisations would investigate matters if they believed they had been defrauded in order to ascertain whether money could be recovered, however, they would riot be doing this in connection with a function relevant for the purposes of s31(1)(g) but would be doing so because it was in their interests. Whilst the council conducted an internal investigation and formed the view that a fraud had been committed it then relayed its suspicions to the police and it was the function of the police to ascertain whether someone had failed to comply with the law.

In summary, therefore, the Council argued that disclosure would prejudice its own functions to investigate fraud and mismanagement but the Commissioner did not accept that the Council has the power to ascertain whether a person had failed to comply with the law or acted improperly — rather those were functions which could only property be claimed by the police (and it is possible that the Commissioner may have accepted the exemption was engaged had the Council been able to confirm that the function of the police (to ascertain whether the law had been broken) was likely to have been prejudiced by the disclosure).