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

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  • FOI/EIR: FOI
  • Section/Regulation: s31(1)(g), s31(2)
  • Issue: Functions exercised for specified purposes under section 31
  • Source: Policy Team; Decision Notices; IT Decision
  • Details: HMRC v ICO (10 March 2009)
  • Related Lines to Take: N/A
  • Related Documents: Awareness Guidance 17 (“Law Enforcement”), Explanatory notes (FOI Act), MoJ Exemptions guidance: s31 — law enforcement, EA/2008/0067, FS50086131, FS50129143
  • Contact: GF
  • Date: 24/08/2009
  • Policy Reference: 158

Line to take

The Commissioner considers that a public authority’s functions will include:

1. The performance of any statutory duty that a public authority has the power and responsibility to perform, by virtue of an enactment or subordinate legislation
2. The performance of duties which are not set out in statute, but which nonetheless comprise a formal part of the public authority’s core business or purpose. This is will be function of a public nature and is exercised in the public interest.

Subsidiary actions or support services (such as HR services) will not normally be considered as the functions of a public authority, unless this is provided in statute.

In relation to s31(1)(g) to (i), the Commissioner considers that in order for a public authority to have a ‘function’ for one of the purposes listed under s31(2), that public authority must have sufficient legal basis for the specified purpose they wish to cite.


Further Information

What is a public authority function?

The Act does not define “public authority function”. The ICO Awareness Guidance 17 (“Law Enforcement”) states that public authorities will be performing functions with a clear basis in law. The MoJ guidance states that “a public authority’s functions are all the things it has the power or duty to do. Functions may be general or specific, and may derive from statute or from the exercise of the prerogative”.

The Commissioner identifies a public authority function as the performance of any statutory duty which that public authority has the power and responsibility to carry out, by virtue of an enactment or subordinate legislation. This will often comprise its core business purpose.

The exemption under section 31(3) of the Data Protection Act 1998, ‘regulatory activity’ is also helpful, it states that “relevant function” means:

(a) any function conferred on any person by or under any enactment,
(b) any function of the Crown, a Minister of the Crown or a government department, or
(c) any other function which is of a public nature and is exercised in the public interest.

He will also consider whether the performance of duties which are not set out in statute, but which nonetheless comprise part of the public authority’s core business purpose constitutes a function.

However, he is clear that subsidiary actions or support services (such as HR services) will not normally be considered as the functions of a public authority, unless this is provided in statute.

Section 31

Section 31(1)(g) reads that:

Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
(g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2)

Section 31(2) lists a range of purposes, with the intention of protecting the conduct of investigations or proceedings. The explanatory notes for section 31 state that these activities may lead to prosecutions. This will not be true for all of the purposes, but in all cases some form of formal action must follow from the purposes listed, related to the PA’s functions.

The Commissioner acknowledges the MoJ guidance on section 31(2) which states: “the exemption does not work by applying the prejudice test directly to these purposes. The test is applied indirectly through section 31(1)(g), (h) or (i). That means that one or more of the “purposes” has to be engaged by one or more of those provisions before a disclosure falls within the terms of this exemption”.

In line with this, ICO Awareness Guidance 17 states that in all cases, public authorities will be performing functions with a clear basis in law. If a public authority does not have a legal basis to carry out an action, it is unlikely to constitute a function for the purposes of this section.

Caseworkers should note that “by any public authority” means that the prejudice does not have to occur to the public authority who is dealing with the request, but can occur to another public authority exercising a function for a relevant purpose. Accordingly, the Commissioner would expect this to be evidenced appropriately.

Many cases under section 31(1)(g) via section 31(2) often involve a regulatory body such as the FSA, Charity Commission or the HSE and it is clear that the body concerned exercises a function for certain purposes, by virtue of legislation. The example below is of a more complex scenario involving the functions of an NHS Trust and may not be relevant to more straightforward cases involving regulatory bodies.

Example

In DN FS50086131, the PA (Newcastle-upon-Tyne Hospitals NHS Trust) had claimed that the requested information (a report to assess the conduct and abilities of a named doctor), was exempt under s31(1)(g) by virtue of 31(2)(b) to (d) and (j). Therefore, the PA put forward that the disclosure of the report would, or would be likely to prejudice the exercise by any public authority of its functions, for the purposes of:

(b) Ascertaining whether any person is responsible for any conduct which is improper;
(c) Ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise;
(d) Ascertaining a person’s fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on;
(j) Protecting personal other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work.

The Commissioner accepted that the public authority exercised a function through its discharge of its common law duty of care to patients, and its statutory duties, in particular noting the following duties:

  • The duty upon all NHS bodies under section 45(1) of the Health and Social Care Act 2003 “to put and keep in place arrangements for the purposes of monitoring and improving the quality of health care provided by and for that body
  • The duty imposed upon every employer under section 3(1) of the Health and Safety at Work Act 1974 “to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who may be affect thereby are not thereby exposed to risks to their health and safety” (paragraph 5.1).

The Commissioner noted that the PA’s interchangeable use of “function” and “purpose” and emphasised that the scope of functions falling under s31(1)(g) is restricted by the requirement that the function is exercised for one or more of the law enforcement ‘purposes’ specified under subsection 31(2) (paragraphs 5.2-5.2.2). In light of this, although the Commissioner accepts that the performance of the identified statutory duties are functions of the public authority, in this case, he did not accept that the discharge of the Trust’s common law or statutory duties to patients is exercised for the purposes of 31(2)(b) to (d) (paragraph 5.2.3).

However, the Commissioner did consider that the discharge of the Trust’s functions can be said to be exercised “for the purpose of protecting persons other than persons at work against the risk to health and safety arising out of or in connection with the actions of persons at work”, in accordance with s31(2)(j). The Commissioner was satisfied that this function would be likely to be prejudiced as there would be a significant risk in future that the convening of similar expert panels would prove impossible or at least extremely difficult, with evidence from the panel of experts to demonstrate this view, and the public interest test favoured maintaining the exemption.

Subsidiary actions or support services (such as HR services) will not normally be considered as the functions of a public authority, unless this is provided in statute.

Although the case of HMRC v ICO considered the exercise of a function under s44, the Tribunal’s considerations can equally apply under s31(1). In this case, the Tribunal considered whether information contained in a report was held in connection with a function of HMRC for the purposes of s44. The report concerned an investigation into allegations about a proposed amnesty to UK tobacco producers. The Tribunal ascertained that HMRC’s central functions were the duty of collecting, accounting and managing revenues of customs and excise as provided for in section 5 of the Commissioners for Revenue and Customs Act 2005 (CRCA).

At paragraph 48, the Tribunal noted that s9(1) of the CRCA provided HMRC had ancillary powers to “do anything which they think necessary or expedient in connection with the exercise of their functions” and that the report was held in connection with the prevention, detection and deterrence of fraud, actions which therefore constituted a function of HMRC.

The report also considered the conduct of the public authority’s own staff as part of the investigation. Normally, the Commissioner would expect that this would be a personnel issue, and therefore, a support service which would not form a function for the purposes of the Act, as articulated in the decision notice for this case (FS50129143). For example, investigations under an organisation’s grievance procedure would not be considered a function exercised for relevant purposes. The investigation must be linked to the public authorities’ defined functions. However, in this case, the Tribunal were of the view that the appointment and suitable disciplining of officers was connected to the main functions of HMRC, as it was provided for in statute through s18(1) of the Commissioners for Revenue and Customs Act 2005 which states that “Revenues and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of Revenues and Customs”. As this was provided in statute, and links to the general functions of HMRC as detailed in s5, the Commissioner agrees with this judgment.