Difference between revisions of "User:Alex skene/LTTscratch"

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{{LTTImport|date_scraped=|ltt_related_docs=
 
{{LTTImport|date_scraped=|ltt_related_docs=
          
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         [http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/awareness_guidance_18_-_public_audit.pdf Awareness Guidance 18]
         |related_ltt=[[LTT11]]|ltt_further_info=
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         |related_ltt=[[LTT12]]|ltt_intro=
  
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 [http://www.insolvency.gov.uk/ 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.
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Auditors appointed under the [http://www.opsi.gov.uk/acts/acts1998/19980018.htm Audit Commission Act 1998] are not public authorities for the purposes of the Act. They may, however, be public authorities for the purposes of the EIR.
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 [http://www.legislation.gov.uk/ukpga/1986/45/contents 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.
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The [http://www.audit-commission.gov.uk/ Audit Commission], which appoints auditors, is a public authority for the purposes of the Act and the EIR. However, it does hold information controlled by its appointed auditors on behalf of those auditors.
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.
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|ltt_further_info=
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<h4>The Audit Commission Act 1998</h4>
  
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.
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The functions of the Audit Commission (or to give it its full title, &ldquo;the Audit Commission for Local Authorities and the National Health Service in England and Wales&rdquo;) are set out in the Audit Commission Act 1998 (the &ldquo;ACA&rdquo;). In broad terms the Commission does two things:
 +
<ul>
 +
<li>It appoints auditors to conduct the annual audits of Local, Police and Fire Authorities and NHS bodies. The appointment of auditors and the powers and duties of those auditors are set out in Part 2 of the ACA</li>
 +
<li>It <em>may</em> itself carry out studies into performance and other matters, either because it considers that this would be useful, or at the invitation of an auditable body, or, in some cases, at the request of the Secretary of State. These matters are dealt with in Part 3 of the ACA.</li>
 +
</ul>
  
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.
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[http://www.legislation.gov.uk/ukpga/1998/18/section/3 Section 3] of the ACA specifies that auditors may be an officer of the Commission (often referred to as &ldquo;District Auditors&quot;) or another individual who is not an officer of the Commission or a &ldquo;firm&rdquo; of such individuals. Whether or not the appointed auditors are &ldquo;officers&rdquo; of the Commission, the powers that they exercise to gather information, produce reports etc are exercised by them personally and not on behalf of the Commission. Although the Audit Commission is a public authority listed in Schedule 1 of the FOIA, District Auditors and other appointed auditors are not.
  
The Insolvency Service website provides an example of the difference between acting as a statutory office holder and as a civil servant:&nbsp; &ldquo;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 [http://www.legislation.gov.uk/ukpga/1986/45/section/132 section 132] or [http://www.legislation.gov.uk/ukpga/1986/45/section/289 section 289]. However, when sending leaflets to aid the recipient (e.g. &lsquo;What happens when you attend the official receiver&rsquo;s office&rsquo; and &lsquo;A guide to bankruptcy&rsquo; or a &lsquo;Guide to directors&rsquo;) the official receiver is acting as a civil servant.&rdquo;
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The general conclusion to be drawn, therefore, is:
 +
<ul>
 +
<li>Appointed auditors are not public authorities and the information which they hold (notably in relation to annual accounts) is not accessible under FOIA.</li>
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<li>The Audit Commission is a public authority. However, information it holds on behalf of an appointed auditor (including &ldquo;officers&rdquo; of the Commissioner) is not caught by the Act since it is covered by s3(2)(a), i.e. it is held by the Commission &ldquo;on behalf of another person&rdquo;.</li>
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<li>When dealing with complaints, the key thing to establish is whether an audit has been carried out under Part 2 of the ACA, in which case it is not held, or Part 3, in which case it is held by the Commission.</li>
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</ul>
  
([http://www.insolvency.gov.uk/freedomofinformation/technical/technicalmanual/Ch1-12/Chapter1/part2/part_2.htm http://www.insolvency.gov.uk/freedomofinformation/technical/techmanvol1/Ch1-12/Chapter1/part2/part_2.htm])
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Appointed auditors clearly have many of the characteristics of public authorities and it is notable that information relating to audits of central government bodies, which are carried out by the National Audit Office, are accessible under the Act since the NAO is a public authority. The DCA is aware of the apparent anomaly and have told us, on a confidential basis, that consideration is being given to an Order designating including auditors appointed by the Commission as public authorities.
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<h4>The Regulations </h4>
  
The arguments above are those proposed by the Insolvency Service. The Information Commissioner accepts and agrees with this approach.
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Auditors appointed by the Commission are public authorities for the purposes of the EIR. This is because of how public authorities are defined in the EIR. The relevant parts of reg 2(2) are as follows:
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<p class="style1"> &ldquo;(2) Subject to paragraph (3), &quot;public authority&quot; means&ndash;
  
The Insolvency Service&rsquo;s approach can be read in full at:
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<em>(a) government departments</em>
  
[http://www.insolvency.gov.uk/freedomofinformation/index.htm http://www.insolvency.gov.uk/freedomofinformation/technical/casehelpmanual/Freedom%20of%20Information/freedomofinformationanddata.htm]
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<em>(b) any other public authority as defined in section 3(1) of the Act, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act ...</em>
  
In summary:
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<em>(c) any other body or other person, that carries out functions of public administration&hellip;&rdquo;</em>
<ul>
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<li>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.</li>
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Auditors are caught by sub-paragraph (2)(c) in that they carry out functions of public administration.  
<li>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 <em>on behalf</em> of the Official receivers and will not be subject to the Act. </li>
 
</ul>
 
  
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&rsquo;s bankruptcy and held by an official receiver for example (which is the information most frequently requested) is not subject to the Act.
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Insofar as environmental information is held on behalf of an auditor by the Commission, that information will be caught by the Act since it will be &ldquo;in the possession of&rdquo; a public authority.
<p align="right"><strong> / </strong>
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<p align="right"><strong></strong>
|ltt_source=Legal Advice |ltt_url=http://www.ico.gov.uk/foikb/PolicyLines/FOIPolicyOfficialReceivers.htm|section=s3|legislation=FOI|ltt_name=|ltt_date=29/08/06|ltt_details=|ltt_id=LTT12|ltt_status=ACTIVE|ltt_intro=
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|ltt_source=Legal Advice |ltt_url=http://www.ico.gov.uk/foikb/PolicyLines/FOIPolicyDistrictAuditors.htm|section=
        <p>When acting as statutory office holders, official receivers are not public authorities, and not subject to the Freedom of Information Act.</p>
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        <p>s3</p>
      |date_added=29/08/06|issue=Official Receivers |ltt_contact=EW}}
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        <p>reg 2 </p>
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      |legislation=
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        <p>FOI</p>
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        <p>EIR</p>
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      |ltt_name=|ltt_date=29/08/06|ltt_details=Audit Commission Counsel Opinion |ltt_id=LTT11|ltt_status=ACTIVE|date_added=29/08/06|issue=District Auditors|ltt_contact=PB}}

Latest revision as of 22:50, 31 May 2011


  • FOI/EIR:

    FOI

EIR

  • Section/Regulation:

    s3

reg 2

  • Issue: District Auditors
  • Source: Legal Advice
  • Details: Audit Commission Counsel Opinion
  • Related Lines to Take: LTT12
  • Related Documents: Awareness Guidance 18
  • Contact: PB
  • Date: 29/08/06
  • Policy Reference: LTT11
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT
  • Original source: (ICO website)

[[Category:ICO Line To Take]] < - add in later.

Line to take

Auditors appointed under the Audit Commission Act 1998 are not public authorities for the purposes of the Act. They may, however, be public authorities for the purposes of the EIR.

The Audit Commission, which appoints auditors, is a public authority for the purposes of the Act and the EIR. However, it does hold information controlled by its appointed auditors on behalf of those auditors.


Further Information

The Audit Commission Act 1998

The functions of the Audit Commission (or to give it its full title, “the Audit Commission for Local Authorities and the National Health Service in England and Wales”) are set out in the Audit Commission Act 1998 (the “ACA”). In broad terms the Commission does two things:

  • It appoints auditors to conduct the annual audits of Local, Police and Fire Authorities and NHS bodies. The appointment of auditors and the powers and duties of those auditors are set out in Part 2 of the ACA
  • It may itself carry out studies into performance and other matters, either because it considers that this would be useful, or at the invitation of an auditable body, or, in some cases, at the request of the Secretary of State. These matters are dealt with in Part 3 of the ACA.

Section 3 of the ACA specifies that auditors may be an officer of the Commission (often referred to as “District Auditors") or another individual who is not an officer of the Commission or a “firm” of such individuals. Whether or not the appointed auditors are “officers” of the Commission, the powers that they exercise to gather information, produce reports etc are exercised by them personally and not on behalf of the Commission. Although the Audit Commission is a public authority listed in Schedule 1 of the FOIA, District Auditors and other appointed auditors are not.

The general conclusion to be drawn, therefore, is:

  • Appointed auditors are not public authorities and the information which they hold (notably in relation to annual accounts) is not accessible under FOIA.
  • The Audit Commission is a public authority. However, information it holds on behalf of an appointed auditor (including “officers” of the Commissioner) is not caught by the Act since it is covered by s3(2)(a), i.e. it is held by the Commission “on behalf of another person”.
  • When dealing with complaints, the key thing to establish is whether an audit has been carried out under Part 2 of the ACA, in which case it is not held, or Part 3, in which case it is held by the Commission.

Appointed auditors clearly have many of the characteristics of public authorities and it is notable that information relating to audits of central government bodies, which are carried out by the National Audit Office, are accessible under the Act since the NAO is a public authority. The DCA is aware of the apparent anomaly and have told us, on a confidential basis, that consideration is being given to an Order designating including auditors appointed by the Commission as public authorities.

The Regulations

Auditors appointed by the Commission are public authorities for the purposes of the EIR. This is because of how public authorities are defined in the EIR. The relevant parts of reg 2(2) are as follows:

“(2) Subject to paragraph (3), "public authority" means– (a) government departments (b) any other public authority as defined in section 3(1) of the Act, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act ... (c) any other body or other person, that carries out functions of public administration…” Auditors are caught by sub-paragraph (2)(c) in that they carry out functions of public administration. Insofar as environmental information is held on behalf of an auditor by the Commission, that information will be caught by the Act since it will be “in the possession of” a public authority.