- 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.
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.
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.