Upper Tribunal (Administrative Appeals Chamber)

DECISION BY THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal.

 

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 15 January 2014, in relation to the Appellant’s appeal against the First Respondent’s Decision Notice FS50453565, does not involve any error on a point of law. The appeal is therefore dismissed and the First-tier Tribunal’s decision stands.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS

 

FOIA, public authorities and the interpretation of the Designation Order 2011

1. Section 1 of the Freedom of Information Act 2000 (FOIA) provides what the heading describes as a “General right of access to information held by public authorities”. Section (1) confers certain rights on “any person making a request for information to a public authority”. So obviously, and in broad terms, public authorities, but not private bodies, are subject to FOIA.

 

2. The law, inevitably, is not quite that simple. Schedule 1 to the Act provides a lengthy list of public authorities, many of which are public authorities for all purposes in the context of FOIA. These include, of course, any government department (with the exception of the Office for Standards in Education, Children's Services and Skills, which is not included for all purposes: see FOIA, Schedule 1, paragraphs 1 and 1A as amended). Some bodies are public authorities except for certain activities. So, the British Broadcasting Corporation (the BBC) is a public authority but only “in respect of information held for purposes other than those of journalism, art or literature” (Schedule 1, Part VI). A much smaller number of bodies are designated by secondary legislation as public authorities but only for certain purposes – one such designated organisation being the Universities and Colleges Admissions Service (UCAS).

 

3. UCAS is the Appellant in the present appeal. Its principal argument, in short, is that “where the requested information is held by it to a significant extent for, and for the immediate object or direct purpose of, some (commercial) function which is outside the function designated by the Designation Order (“the Designated Function”) that information does not fall within FOIA, even if it is also held for the purposes of the Designated Function and in relation to the institutions cited in the Designation Order” (skeleton argument at §1(a)).

 

4. The Information Commissioner (“the Commissioner”), and the First Respondent in this appeal, frames the principal legal issue arising on this appeal rather differently: “where a body is brought within the scope of FOIA in respect of particular functions should that designation be interpreted broadly, to increase the scope of the application of FOIA, or narrowly, to limit the scope of the designation?” (skeleton argument at §3). The Commissioner says it should be read broadly.

 

5. Both parties, however, argue that their approach to the question of statutory interpretation in this case is purposive. UCAS submits that the Designation Order must be construed purposively so as to give effect to Parliament’s intention to prevent the disclosure of information when this would risk interference with UCAS’s excluded (i.e. private commercial) functions. The Commissioner, on the other hand, contends that a broad and purposive approach to the construction of the relevant legislation must be adopted, so as to enable the disclosure of information, given the principles of greater openness and transparency that underpin FOIA.

 

A summary of the Upper Tribunal’s decision

6. In this case both the Commissioner and the First-tier Tribunal (“the Tribunal”) decided that the requested information fell within the scope of FOIA. I conclude, for the reasons that follow, that the Tribunal’s decision does not involve any error of law. I therefore dismiss the appeal by UCAS.

 

The legal framework

7. Section 3(1) of FOIA defines the term “public authority” in the following terms:

 

“(a) subject to section 4(4), any body which, any other person who, or the holder of any office which—

(i) is listed in Schedule 1, or

(ii) is designated by order under section 5, or

(b) a publicly-owned company as defined by section 6.”

 

8. Nothing in the instant appeal turns on either section 4(4) or section 6. So, for present purposes, public authorities are those bodies which are either listed in Schedule 1 to FOIA or designated by order under section 5. Schedule 1 itself does not list UCAS. Nor does it list individual universities. However, it does include in generic terms the governing body of e.g. any “university receiving financial support under section 65 of the Further and Higher Education Act 1992” (Schedule 1, paragraph 53(1)(b)). Those institutions sometimes referred to as private universities are accordingly outside the scope of FOIA.

 

9. Section 5 of FOIA provides what it describes as a “further power to designate public authorities”. The material provisions read as follows:

 

“(1) The Secretary of State may by order designate as a public authority for the purposes of this Act any person who is neither listed in Schedule 1 nor capable of being added to that Schedule by an order under section 4(1), but who—

(a) appears to the Secretary of State to exercise functions of a public nature, or

(b) is providing under a contract made with a public authority any service whose provision is a function of that authority.

(2) An order under this section may designate a specified person or office or persons or offices falling within a specified description.

(3) Before making an order under this section, the Secretary of State shall consult every person to whom the order relates, or persons appearing to him to represent such persons.”

 

10.  Section 5 is then supplemented by section 7(5), which provides that:

 

“(5) An order under section 5(1)(a) must specify the functions of the public authority designated by the order with respect to which the designation is to have effect; and nothing in Parts I to V of this Act applies to information which is held by the authority but does not relate to the exercise of those functions.”

 

11.  To date there has only been one Order made under the power vested by section 5(1)(a). The Freedom of Information (Designation as Public Authorities) Order 2011 (SI 2011/2598; “the Designation Order”) came into force on 1 November 2011. It designated three particular bodies as being public authorities (or at any rate in respect to certain functions): (1) the Association of Chief Police Officers (ACPO, at least as it is currently known), (2) the Financial Ombudsman Service and (3) UCAS. Article 2 of the Order provided that “The persons listed in column 1 of the Schedule are designated as public authorities under section 5(1)(a) of the Freedom of Information Act 2000 with respect to the function or functions specified in column 2.” The relevant entry in the Schedule to the Order reads as follows:

 

The Universities and Colleges Admissions Service

The provision and maintenance of a central applications and admissions service in relation to: (a) an institution listed in paragraphs 53(1)(a) to (e) and 55(1)(a) and (b) of Part 4 of Schedule 1 to the Freedom of Information Act 2000; (b) an institution listed in Part 5 of Schedule 1 to the Freedom of Information (Scotland) Act 2002; (c) the College of Agriculture, Food and Rural Enterprise.

 

12.  It followed that the nub of this appeal was the proper interpretation of the designated function, encapsulated in the expression “the provision and maintenance of a central applications and admissions service in relation to ...” the institutions generically described in paragraphs (a), (b) and (c) of the entry against UCAS in column 2 of the Schedule – in essence publicly-funded universities (strictly “higher education institutions”, or “HEIs”, would be a more accurate term, but “universities” suffices for present purposes) and further education (FE) colleges.

 

UCAS, the FOIA requests by Lord Lucas and the factual background

13.  UCAS processes around 700,000 undergraduate student applications in a typical year. Many of those students and their parents doubtless assume that UCAS is, to use a deliberately vague term, some form of government agency. It is actually nothing of the sort. A footnote to the Designation Order informs the reader that UCAS is “A company incorporated under the Companies Act 2006 with the registration number 2839815.” It is also a registered charity, and one that receives no government funding. Its total income in 2011-12 was £34 million, of which about one third was generated by its wholly-owned trading subsidiary, UCAS Media Limited, with the other main revenue streams being charges to universities and application fees levied on students. UCAS Media Ltd provides various analytical services to commercial and non-commercial organisations alike. According to UCAS, UCAS Media Ltd’s business model – and hence the long-term sustainability of UCAS’s core activities – is based on the right of exclusivity to what it calls “historical admissions data”, i.e. applications and admissions data relating not to the current year but to previous annual admissions cycles.

 

14.  Lord Lucas, the requester and Second Respondent in this appeal, is a publisher and also editor of The Good Schools Guide, a well-known commercial publication. Coincidentally for present purposes he is also a member of the House of Lords. He made a series of FOIA requests to UCAS. The present appeal concerns only two of those requests, known as Request 5 and Request 6, made in February and March 2012 respectively.

 

15.  Request 5 sought from UCAS data about the number of applications and confirmed accepted applications to universities for the three academic years “from 2009/10 to 2011/12 (to date)”. UCAS initially responded by advising Lord Lucas that it held the information requested, but considered that it was entitled to refuse the request on the basis of sections 12 (cost of compliance), 21 (information accessible by other means), 40(2) (personal data) and 43(2) (information likely to prejudice commercial interests). In the course of the Commissioner’s investigation, UCAS modified its position, to the effect that (i) it argued the historic admissions data (i.e. 2009/10 to 2011/12) was not covered by FOIA, being outside the scope of the Designation Order; (ii) it conceded data relating to 2012/13, the live cycle at the time of the request, was in principle within the remit of FOIA; but (iii) it contended in any event all the requested data was exempt from disclosure on the basis of sections 41(1), 43(1) and 43(2) and the public interest did not favour disclosure.

 

16.  In Request 6 Lord Lucas requested from UCAS comparative data about the predicted grades given by schools for each A Level (or equivalent) examination and the actual grades achieved by pupils, and as before for the years “2009/10 to 2011/12 (to date)”. UCAS initially refused the request, again citing sections 12, 21, 40(2) and 43(2) of FOIA. Again, UCAS later refined its arguments, contending (as with Request 5) that the historic data from previous years fell outside the scope of FOIA but (in contradistinction to Request 5) explaining that the information in question in any event was not held by UCAS in the form or level of detail sought, but would require the creation of new information.

 

The Information Commissioner’s Decision Notice

17.  On 22 May 2013 the Commissioner issued a detailed and lengthy Decision Notice on the complaint by Lord Lucas (FS5043565). The gist of that Decision Notice was helpfully summarised at paragraphs 1 and 2:

 

“1. The complainant submitted a number of requests to UCAS. ‘Request 5’ sought data about applications to universities; ‘request 6’ sought data about the accuracy of predicted grades of applicants to universities. UCAS argued that as a public authority, that was only partially covered by FOIA, it had no obligations under FOIA in relation to information that was not held for the immediate purpose of its single FOIA designated function, namely the provision and maintenance of a central applications and admissions service. It concluded that on this basis the majority of the requested information was not in fact accessible under FOIA, in other words is was not a public authority in respect of the majority of the requested information as it related to previous admissions cycles. In the alternative, UCAS argued that the information falling in the scope of request 5 was exempt on the basis of sections 41(1), 43(1) and 43(2) of FOIA and that fulfilling request 6 would require the creation of new information, something it was not required to do under FOIA.

 

2. With regards to the issue of its designation, the Commissioner disagrees with UCAS and has instead concluded that all of the information falling within the scope of both requests is potentially accessible from UCAS under FOIA. However, the Commissioner is satisfied that the information falling within the scope of request 5 was correctly withheld on the basis of section 43(2), the commercial interests exemption, and that fulfilling request 6 would indeed require the creation of new information and thus for the purposes of FOIA, UCAS does not hold the information sought by request 6.”

 

18.  In short, the Commissioner disagreed with UCAS on the effect of the Designation Order, rejecting UCAS’s argument that the historic data was outside the scope of FOIA, but accepted UCAS’s position on the remaining issues (with the proviso that the Commissioner, having found that section 43(2) applied, did not need to explore the other exemptions relied on by UCAS). Thereafter UCAS lodged an appeal with the Tribunal, arguing that the Tribunal should allow the appeal and substitute a Decision Notice to the effect that the historic disputed information was outside the scope of FOIA. Lord Lucas indicated that he would not be appealing against those elements of the Commissioner’s Decision Notice that went against him. He indicated that he was “content that the Commissioner should give fair weight to commercial considerations” but warned that, in his view, “UCAS’s appeal, if upheld, would render the designation without any real effect”.

 

The First-tier Tribunal’s hearing and decision

19.  The Tribunal held an oral hearing of UCAS’s appeal on 2 December 2013. It heard oral evidence from Ms Mary Curnock Cook, UCAS’s Chief Executive, and Dr Mark Corver, its Head of Analysis and Research, based on their written witness statements. In its decision dated 15 January 2014 the Tribunal upheld the Commissioner’s Decision Notice and so dismissed UCAS’s appeal.

 

20.  In particular, the Tribunal held that the Commissioner had not misdirected himself as to the proper test to be applied when considering the application of the Designation Order. The Tribunal concluded that the correct test, applying BBC v Sugar (No. 2) [2012] UKSC 4 (which it referred to as Sugar, but to avoid any possible confusion I refer to as Sugar (No. 2)), is as follows:

 

“[63] Information held by UCAS falls into one of two categories. It is either in no way held in relation to the Designated Function, or it is held in relation to the Designated Function even if it is also held in relation to other (possibly more important) functions. The sequence for applying Sugar, is as follows:

 

(1) Is the information held by UCAS to any significant degree (not de minimis) in relation to the exercise of the Designated Function, even if it is also held in relation to other (possibly more important) functions? Where there is doubt over the degree to which it is held, the relevant question is whether there is a sufficiently direct link, sufficient proximity, between the holding of the information and the exercise of the Designated Function.

 

(2) If yes, is the information held in relation to a listed institution within the meaning of the 2011 Order? If yes, then information falls within the scope of FOIA.

 

(3) Does an exemption within Part I or II of FOIA apply?”

 

21.  In doing so, the Tribunal also rejected UCAS’s alternative submission that it should adopt the “dominant purpose” test (decision at [73]). Further, the Tribunal ruled that in deciding whether information related to a designated function the correct legal test was whether the information could be said to be “connected with or arising out of” the designated function (decision at [74]). Applying that test, the Tribunal concluded “considering the evidence in the round, that the Historic Disputed Information relates to some significant degree and not de minimis to the Designated Function” (decision at [76]).

 

22.  Judge Callender Smith, who presided over the Tribunal in question, subsequently gave UCAS permission to appeal on a point of law to the Upper Tribunal.

 

The Upper Tribunal’s oral hearing

23.  I held an oral hearing of the further appeal at Field House on 1 October 2014. UCAS were represented by Ms Monica Carss-Frisk QC and Ms Jane Collier of Counsel; the Commissioner was represented by Mr Christopher Knight of Counsel, who had all appeared at first instance. Lord Lucas also attended, more by way of a watching brief than as an active party, although he took the opportunity to make some observations on the appeal. I am grateful to all concerned for their helpful contributions, both written and oral. I also invited further submissions after the hearing on a jurisdictional issue, an invitation which was taken up by UCAS and the Commissioner but an offer which Lord Lucas (not unreasonably) declined. Before dealing with UCAS’s grounds of appeal, there are two preliminary matters to mention.

 

Two preliminary matters

(1) A purely academic issue?

24.  The first preliminary matter was my lurking concern when previewing this case that this appeal to the Upper Tribunal was now purely academic. In one practical sense at least, there was simply no longer any live issue between the parties as to the outcome of the proceedings. The Commissioner had agreed with UCAS that the qualified exemption under section 43(2) (information likely to prejudice commercial interests) of FOIA applied in any event to Request 5. Lord Lucas had very fairly intimated at an early stage that he was not minded to dispute that assessment. So UCAS was entitled not to disclose any information in response to Requests 5 (because an exemption applied) and 6 (because the disputed information was not held in any event) and nothing was going to change that outcome. In the event I did not invite submissions on this concern. My reasons were as follows.

 

25.  UCAS’s position was plain: so far as it was concerned, the appropriate construction of the Designation Order was “of considerable practical importance to UCAS in determining how to respond to future requests for information; and [is] particularly significant in relation to the commercial operations which provide a substantial source of UCAS’s funding” (skeleton argument at §2). The Commissioner took an active role in resisting UCAS’s appeal, arguing that the Tribunal’s decision was not limited to the position of UCAS but more generally “provided guidance as to the correct approach to take where an authority is designated by Order for the purposes of FOIA in respect of its functions” (skeleton argument at §1). In addition, as Mr Knight reminded me, the general right conferred by section 1 of FOIA has to be read through a dual lens. It is not simply a right that the requester have “information communicated to him” (section 1(1)(b)); it is also a right “to be informed in writing by the public authority whether it holds information of the description specified in the request” (section 1(1)(b)), whether or not disclosure can be refused by virtue of an exemption. As Mr Knight observed, that may be a valuable right in itself. Lord Lucas himself was certainly alive to the wider policy implications involved in this appeal. In all those circumstances it is clearly appropriate to decide the legal issue between the parties, even if the practical outcome of these particular FOIA requests will not be directly affected.

 

(2) A question of jurisdiction?

26.  The second preliminary matter, which I raised at the oral hearing and on which I invited further submissions to be made in writing, was potentially more troublesome. I pointed out that a jurisdictional issue had arisen in a series of other freedom of information cases currently pending before the Upper Tribunal. The cases in question are Fish Legal and Shirley v Information Commissioner (GIA/979/2011 and GIA/980/2011), Duchy of Cornwall and HM Attorney General to HRH Prince of Wales v Bruton and Information Commissioner (GIA/158/2012) and Cross v Information Commissioner and Cabinet Office (GI/2187/2013). In all three cases the Commissioner had declined to deal with complaints made under the Environmental Information Regulations 2004 (SI 2004/3391: “the EIR”) on the basis that the bodies in question, from which the disputed information was sought (certain water companies, the Duchy of Cornwall and the Royal Household respectively), were not “public authorities”. The Government’s case is (as I understand it to be) that it is for the High Court in judicial review proceedings (and not the First-tier or Upper Tribunal) to determine, as a matter of precedent fact, whether a particular body is, or is not, a public authority for the purposes of the EIR when the Commissioner has declined jurisdiction on that basis. In particular, I raised with the parties in the present proceedings whether there was any appetite for the present appeal to be stayed pending the resolution of the Fish Legal and allied litigation.

 

27.  In its helpful further written submission, UCAS expressly disavowed any wish to pursue an argument either that the Commissioner did not have jurisdiction to determine whether the relevant requested information fell within the scope of FOIA and/or that the First-tier and Upper Tribunals had no jurisdiction to hear its appeal against the Commissioner’s Decision Notice in this case. However, entirely understandably UCAS reserved its right to pursue such arguments in relation to future requests, or indeed to appeals in relation to such future requests, depending in part on the outcome of such other litigation. The Commissioner, in the light of UCAS’s stated position, has nothing further to add and was content for the matter to proceed to determination. As noted above, Lord Lucas did not wish to make any observations on this particular matter.

 

28.  It is axiomatic that the parties cannot confer jurisdiction on the Tribunal by agreement where no such jurisdiction exists as a matter of law. However, as matters stand it appears to me that the Tribunal clearly had jurisdiction to determine this appeal against the Commissioner’s Decision Notice by virtue of section 57(1) of FOIA. I proceed accordingly.

 

UCAS’s grounds of appeal against the Tribunal’s decision

29.  UCAS advances three grounds of appeal. The first is that the Tribunal erred in law in its analysis of the correct test to be applied when determining whether information held by UCAS fell within the scope of FOIA. In short, UCAS submits that the Tribunal got it wrong in formulating the test as it did in paragraph [63] of its decision (see paragraph 20 above). The second, and alternative or fall-back ground of appeal, is that the Tribunal erred in law in rejecting the “dominant purpose” test. The third ground is that the Tribunal erred in law in holding that the disputed historical information “related to” the designated function.

 

30.  The Commissioner, in short, argues that UCAS’s appeal should be dismissed, for the reasons given in both the Decision Notice and the Tribunal’s decision. His core submission is that the Tribunal directed itself properly as to the correct legal test and applied that test properly on the facts.

 

The Upper Tribunal’s analysis of the three grounds of appeal

Ground 1: the correct test to be applied under the Designation Order

The parties’ submissions in outline

31.  Ms Carrs-Frisk’s primary submission was that the Tribunal had applied the wrong legal test in upholding the Commissioner’s Decision Notice. In her submission a two-stage test should first be applied in deciding whether the requested information was within the scope of the Designation Order. First, is UCAS exercising the Designated Function, in other words is the information held for the provision and maintenance of a central applications and admissions service? Secondly, if so, was UCAS doing so in relation to specific institutions cited in the Designation Order? If the answers to both limbs of that initial two-stage test were in the affirmative, then further questions had to be asked: is the relevant information also held to a significant extent for some other (e.g. commercial) purpose which is outside the scope of the Designated Function? If so, is the immediate object of UCAS holding the information related to its non-designated (e.g. commercial) functions? If yes, then the information falls outside the ambit of FOIA. This alternative test was justified in two main ways.

 

32.  First, Ms Carrs-Frisk QC argued that this formulation of the proper approach was consistent with the intention of Parliament in making the Designation Order, as shown by the relevant ministerial statements to the House of Lords Grand Committee when the 28^th Report from the Joint Committee on Statutory Instruments was considered (Hansard, HL Vol. 731, cols GC15-24, 17 October 2011), and echoed in the First Delegated Legislation Committee in the House of Commons (cols 3-10, 18 October 2011). Those ministerial statements had made it clear that UCAS’s commercial functions were regarded as distinct from the central applications services it provided and so were not considered to be functions of a public nature.

 

33.  Second, Ms Carrs-Frisk QC submitted that only this approach was consistent with the decision of the Supreme Court in Sugar (No. 2). The Supreme Court had held there, in view of both the language and purpose of FOIA, that information held by the BBC to any significant degree for the purposes of journalism was not “held for purposes other than those of journalism” within the meaning of Part VI of Schedule 1 to FOIA (even if, in fact, the information was held for other possibly more significant purposes). The effect of Sugar (No. 2) was that information held for an excluded purpose (there journalism) should be protected, i.e. not made subject to the obligations of FOIA, even if the information was held for other non-excluded and possibly more significant purposes. The reason for this was to prevent any interference with the BBC’s performance of the excluded functions. By the same token, the Designation Order also had to be construed purposively in order to prevent disclosure of information when this would risk interference with UCAS’s excluded (commercial) functions.

 

34.  UCAS’s position, therefore, was that the Tribunal had failed to follow and indeed arrived at a conclusion which was in substance diametrically opposed to the outcome in Sugar (No. 2). The Tribunal had adopted the opposite construction to that mandated by the Supreme Court – in other words, if there was a sufficient link from the disputed information to a function that was within the remit of FOIA, then the information was also within the scope of FOIA. The Tribunal’s approach also failed to give effect to section 5 of the Act (which limits the designated FOIA function to those functions of a public nature) and was inconsistent with section 7(5), which plainly excluded from the scope of FOIA information which does not relate to the designated functions.

 

35.  Mr Knight, for the Commissioner, argued that the starting point for the interpretation of FOIA (and, necessarily, of any secondary legislation such as the Designation Order) comprised the following three principles. First, the statutory purpose of FOIA was to make provision for the disclosure of information held by public authorities in the interests of greater openness and transparency. Second, and as has been confirmed in the case law, FOIA should be construed broadly and liberally, rather than narrowly. Third, a broad construction of the scope of FOIA is itself of purposive value because of the dual limbs of the section 1 general right (see paragraph 25 above). It followed that the principal purpose of the Designation Order was to bring UCAS’s designated function within the scope of FOIA and subject to the principles of greater openness and transparency.

 

36.  Mr Knight further submitted that Sugar (No. 2) did not apply in the way that Ms Carrs-Frisk QC had argued. The BBC was in the reverse position to UCAS. The starting point of the two bodies was fundamentally different in that the BBC is designated as a public authority in relation to all of its functions except those exempted by the wording of its designation in Schedule 1 to FOIA. UCAS, by contrast, is not designated as a public authority generally, but only for the function(s) included by the specific wording in the Designation Order. The purpose of the statutory wording was also different: the relevant phrase at issue in Sugar (No. 2) was, as the Supreme Court noted, positive in form but negative in substance, with the emphasis on what was not covered by FOIA. In UCAS’s case, however, the language of the Designation Order was plainly positive and so focussed on what was caught by FOIA. The contexts of UCAS and the BBC were thus different.

 

37.  Rather, Mr Knight submitted, the significance of the Supreme Court’s decision in Sugar (No. 2) lay in Lord Walker’s observation that information held by the BBC in effect fell into only two categories: “one is information held for purposes that are in no way those of journalism, and the other is information held for the purposes of journalism, even if it is also held for other (possibly more important purposes” (at [75]). Applying the same analysis to the position of UCAS, information was either in no way held in relation to the designated function or it was so held, even if it was also held for other more important functions. The Tribunal had therefore correctly applied the relevant principle in Sugar (No. 2) in its formulation of the test to be applied (decision, [63]; see paragraph 20 above). It was normally sufficient to ask simply whether the information was held to any significant degree (not de minimis) in relation to the exercise of the designated function, even if it is also held in relation to other (possibly more important) functions. If there was any doubt over the degree to which it was held, then it was appropriate to go on to ask whether there was a sufficiently direct link or sufficient proximity between the holding of the information and the exercise of the designated function. These latter formulations were supported by the observations of Lord Walker and Lord Brown in Sugar (No. 2) (at [83] and [106] respectively).

 

38.  Mr Knight further argued that the effect of the test propounded by Ms Carrs-Frisk QC (as set out at paragraph 31 above) was that information necessarily fell outside the scope of FOIA, even if it was held in relation to the designated function, where it was also held to a more than de minimis extent in relation to some non-designated function. This remarkably narrow reading, on UCAS’s submissions, would therefore have the effect that only information relating to the live applications and admissions cycle would fall within the scope of FOIA, an outcome which by itself must cast doubt on the soundness of the underlying submissions.

 

The Upper Tribunal’s analysis and conclusions on Ground 1

39.  I agree with Mr Knight that the starting point in this exercise in statutory interpretation must be the principle that FOIA is a constitutionally important piece of legislation, the scope of which must be interpreted broadly. This much is plain from Sugar (No. 2) itself (see Lord Walker at [76] and Lord Mance at [110]), as well as from other decisions of the House of Lords and Supreme Court (see Common Services Agency v Scottish Information Commissioner [2008] UKHL 47 at [4] per Lord Hope and Kennedy v Charity Commission [2014] UKSC 20 at [153] per Lord Sumption). This emphasis on a liberal construction is, to borrow a phrase from a different context of statutory interpretation, the golden thread which runs through the FOIA case law, whether in the rarefied atmosphere of the Supreme Court or on the judicial shop floor at the First-tier Tribunal.

 

40.  Ms Carrs-Frisk QC placed great emphasis in her submissions on the importance of protecting UCAS’s commercial interests, as had been recognised by the ministerial statements in the debates on the Designation Order. I did not find those references to Hansard helpful. Even assuming that the criteria in Pepper v Hart [1993] AC 593 were made out (a matter on which I did not hear argument), I could see nothing in the Parliamentary debates that provided clear assistance to deal with the situation where there is an overlap as regards information that is held both for a designated function and a non-designated purpose. Politicians, and their civil service speech-writers, are naturally inclined to see the subject matter of their legislative endeavours in black and white terms. It falls to courts and tribunals to deal with those more complex situations involving shades of grey, often not anticipated by those charged with drafting and piloting legislation through Parliament. I do not doubt the importance of UCAS’s commercial functions. However, the focus of the Designation Order is necessarily on what is included in terms of functions of a public nature, not on what is excluded.

 

41.  In effect, Ms Carrs-Frisk QC sought to persuade me that the primary aim of the Designation Order was to protect UCAS’s commercial interests. Standing back for a moment, that cannot be right. It involves imputing a statutory purpose based on the narrow (albeit important) perspective of UCAS’s own commercial self-interest. The primary aim of the Order was surely to ensure that bodies of whatever formal legal status that exercise functions of a public nature are subject to the same degree of scrutiny under FOIA as ‘ordinary’ public authorities in relation to those functions and as a result become more open, transparent and accountable. The non-designation of UCAS’s other functions (e.g. commercial functions) is necessarily a secondary purpose of the Designation Order. In those circumstances it seems to me that the golden thread I have referred to must carry the day in terms of mandating a liberal construction of the legislative provisions in issue.

 

42.  As Mr Knight intimated in his opening oral submissions, the First-tier Tribunal had in effect been faced with a binary choice in its approach to the construction of the Designation Order. The first possibility was that UCAS was right, and UCAS was in exactly the same position as the BBC, with the consequence that where information was held for the designated statutory purpose it nonetheless fell outside the scope of FOIA if it was simultaneously held for any significant purpose for UCAS’s commercial purposes. The second option was that the Commissioner was correct in adopting a test based on a liberal interpretation of FOIA, with the result that so long as the information was held by UCAS to any significant degree for its designated functions, then the information fell within the scope of FOIA (Decision Notice at [40]-[42], as approved by the Tribunal at [63]).

 

43.  Against that background, the statutory language of both FOIA and the Designation Order must be construed. The designated function is “the provision and maintenance of a central applications and admissions service in relation to” universities and FE colleges. These are “the functions of the public authority designated by the order with respect to which the designation is to have effect” within the meaning of the first limb of section 7(5) of FOIA. Section 7(5) then goes on to provide that “nothing in Parts I to V of this Act applies to information which is held by the authority but does not relate to the exercise of those functions”.

 

44.  In this context I do not accept Ms Carrs-Frisk QC’s submission that the situation of UCAS is simply the converse of that of the BBC. I say that for three reasons. The first is that the statutory language is materially different. For UCAS the critical question for purposes of the present enquiry is whether the information in issue “relates to” the exercise of a designated function (emphasis added). The case of the BBC is not on all fours, as the focus under Part VI of Schedule 1 is “in respect of information held for purposes other than those of journalism, art or literature.” Second, section 7(5) is central to the understanding of the effect of the Designation Order, but simply has no relevance in the case of the BBC, where the qualification is self-contained within the terms of Part VI of Schedule 1. The third reason is concerned with the conceptual structure of the legislation. The BBC is a public authority for all purposes under FOIA except where the express exclusion in Schedule 1 operates. As noted above, however, there is no express exclusion for UCAS’s commercial activities. The focus of the Designation Order is very different, with the express inclusion of the designated function. UCAS’s case requires an express inclusion (the designated function) to be set against an implied exclusion (commercial and indeed any other non-designated activities), which is philosophically different from the exercise required by Schedule 1 in the case of the BBC (an express inclusion married with an express exclusion of information held for certain purposes).

 

45.  Plainly, information which relates exclusively to UCAS’s commercial functions is outside the scope of FOIA, as by virtue of section 7(5) “nothing in Parts I to V of this Act applies to information which is held by the authority but does not relate to the exercise of those [designated] functions”. The key to unlocking the effect of the Designation Order is therefore to understand what is meant by “relates to”. As a matter of its ordinary meaning, “relating to” is undoubtedly synonymous with “connected with” or “arising out of” – the fact that R v Smith [1975] QB 531, from which those alternative formulations by Lord Denning MR were derived, was decided in a very different context cannot detract from the basic meaning of the expression in the English language.

 

46.  Closer to home, in the context of FOIA itself, “relates to” has been accorded a similar broad construction, e.g. “some connection between the information” and the relevant body or that “it touches or stands in relation to such a body” (APPGER v ICO and FCO [2012] Info LR 258 at [65]. It is true, of course, that APPGER was concerned with the construction of “relates to” in the context of a substantive exemption, not an inclusion. However, I agree with Mr Knight that it would be surprising if the same words were to be subject to a very different construction in the same statute. Furthermore, it is entirely consistent with the underlying purpose of the statutory scheme that the Designation Order may bring more information within the scope of FOIA but that the exemptions should thereby also cover more information, not least given the dual right enshrined in section 1.

 

47.  It follows that my conclusion as regards the first and indeed UCAS’s primary ground of appeal is that there was no error of law on the part of the Tribunal. In sum, the Tribunal was correct to approve the formulation advanced by the Commissioner in the Decision Notice for identifying whether or not information related to UCAS’s designated functions. My principal reasons for reaching this conclusion are as set out above. In fairness to Ms Carrs-Frisk QC’s elegant submissions, I also deal (relatively briefly) with the following further arguments.

 

48.  First, the Tribunal noted that it would have been open to Lord Lucas, or indeed any other requester, to make a laborious series of separate FOIA requests for the historic disputed information to individual universities. The Tribunal expressed the view that an inability to obtain such information from a central service provider would be “an artificial and erroneous conclusion” (decision at [77]). I take Ms Carrs-Frisk QC’s point that the respective FOIA obligations of UCAS and individual universities are not inter-changeable. However, I agree with Mr Knight that there remains an obvious overlap, and the fact that the Designation Order is drafted by references to universities and colleges which are already within the ambit of FOIA is an aid, albeit not a conclusive aid, to its construction.

 

49.  Second, UCAS put forward a considerable body of evidence to the Tribunal (summarised before the Upper Tribunal) as to how it organised its functions into “apply services”, “inform services”, “search services” and “analytical services”. It sought to argue that the designated function is the live annual applications and admissions cycle running from September each year through to the beginning of November in each following year. Fascinating although this material was, I agree with the Tribunal that the way that UCAS defines its business and applies its information internally cannot be determinative (decision at [75]-[76]). In the event of disagreement, the proper construction of the Designation Order in the context of the framework of FOIA is ultimately a matter for judicial resolution. It is not determined by UCAS’s management structures or internal working practices.

 

50.  Third, UCAS relied on dicta to the effect that the courts recognise the importance of protecting confidential commercial information, vividly described by Rix LJ as “the life blood of an enterprise” (Veolia v Nottinghamshire County Council [2010] EWCA Civ 1214 (at [11]). That does not mean, however, either for UCAS or for any other public authority, that information is necessarily outwith the scope of FOIA if commercial in nature. The simple fact is that there is express protection for commercial information by virtue of the exemptions in sections 41 and 43 – protection which the Commissioner decided applied in the context of Lord Lucas’s Request 5. This state of affairs comes nowhere near Bennion’s “principle against doubtful penalisation” as regards the protection properly afforded to proprietary rights and economic interests (F. A.R. Bennion, Statutory Interpretation, 6th edn (2013), pp.749-755 and 764-769).

 

51.  Fourth, and finally, UCAS argued that the Tribunal erred in law by holding that the presence of the existing exemptions in FOIA was relevant to the construction of the Designation Order (decision, [71]). This, Ms Carrs-Frisk QC submitted, was despite a similar argument being rejected by the Supreme Court in Sugar (No. 2). However, I agree with Mr Knight that the fact that the Supreme Court declined to read the exclusion of the BBC’s journalism (etc.) purpose narrowly in the light of the substantive FOIA exemptions does not entitle UCAS to read from that a general principle that the remainder of the Act, including the exemptions, is irrelevant to the construction of both section 7 and the Designation Order. It is a basic tenet of statutory interpretation that legislation should be construed as a whole. In addition, the Supreme Court in Sugar (No. 2) were plainly exercised in that context both by the engagement of Article 10 and by the absence of any directly applicable journalism exemption in Part II of FOIA (contrast Data Protection Act 1998, section 32).

 

Ground 2: the “dominant purpose” test

52.  Without prejudice to its first and principal ground of appeal, UCAS’s fall-back position was to argue that the correct approach was to apply the “dominant purpose” test (or, as it had been labelled before the Tribunal below, the “predominant purpose” test; it seems to me nothing turns on which of the two terms is used here). In other words, is the “dominant purpose” for which the information is held the function for which UCAS is designated under the Designation Order, or is it for some other (e.g. commercial) function or purpose? On this analysis, if the latter is the case then the information in question falls outside the scope of FOIA.

 

53.  UCAS acknowledged that the “dominant purpose” test did not find favour with the Supreme Court in BBC v Sugar (No. 2), with the exception of Lord Wilson (dissenting). However, in relation to this ground of appeal, UCAS argued that the Supreme Court was concerned with a different exclusion. If the Tribunal concluded, as it had here, that the starting point, legislative purpose and focus of the statutory language in the cases of the BBC and UCAS were different, then it followed there was no reason why the Supreme Court’s (majority) rejection of the “dominant purpose” test should necessarily apply here. On that basis, it was open to the Tribunal to conclude that a “dominant purpose” test was a sensible approach (in effect, an intermediate position or half-way house), which was also consistent with the intention underpinning the Designation Order. Furthermore, the “dominant purpose” test has been adopted in civil proceedings where issues have arisen over the disclosure of documents (see e.g. Waugh v British Railways Board [1980] A.C. 251 and Peach v Commissioner of Police of the Metropolis [1986] QB 1064).

 

54.  On the face of it I acknowledge that the Tribunal dealt with this submission by UCAS rather peremptorily. Its decision simply recorded that “The Tribunal declines UCAS’s suggestion that it adopts the ‘predominant purpose’ test that failed before the 4-1 majority in the Supreme Court” (decision at [73]). However, in the circumstances that was sufficient. As Mr Knight put it in oral argument, UCAS was effectively seeking to “breathe life into the hitherto deceased corpse of the dominant purpose test”. This was not a case in which the Supreme Court’s decision in BBC v Sugar (No. 2) had been ignored. On the contrary, the Tribunal had accepted the Commissioner’s arguments as to the meaning and application of Sugar (No. 2) in a different but related FOIA context. Indeed, the wording of the test adopted by the Tribunal deliberately echoed the judgments in Sugar (No. 2) (see paragraph 20 above). Given that the present case is in broadly the same sort of territory as Sugar (No. 2), and the Tribunal’s careful consideration of, but rejection of, UCAS’s principal argument as to the correct legal test, it is unsurprising that this alternative submission was dealt with rather summarily.

 

55.  Further, I do not regard decisions such as Waugh and Peach of any real assistance in the present context, given that FOIA is a freestanding statutory code on access to information held by public bodies. It is far more in point, as Mr Knight observed, that in an earlier case I too had similarly declined to adopt the “dominant purpose” test in another FOIA context (as to whether information is “held”): see University of Newcastle v Information Commissioner and BUAV [2011] UKUT 185 (AAC); [2011] 2 Info LR 54 – a case in which I note that the University was granted permission to appeal to the Court of Appeal but which appeal was in the event not pursued. It follows that I reject the second ground of appeal.

 

Ground 3: did the disputed historical information “relate to” the designated function?

56.  UCAS’s third ground of appeal was that the Tribunal had erred in law in deciding that the disputed historical information “related to” the designated function. The Tribunal had concluded that the disputed historical information “relates to some significant degree and not de minimis to the designated Function. There is a sufficiently direct link, sufficient proximity, between the information and the ‘provision and maintenance of a central applications and admissions service’ to engage FOIA as applied by the Designation Order” (decision at [76]).

 

57.  Ms Carss-Frisk QC submitted that in doing so the Tribunal had applied the wrong test for determining whether the information “related to” the designated function, namely one of “being connected with or arising out of” that function (see decision at [74]). This test, she submitted, was far too wide and ran counter to the policy behind the Designation Order. Furthermore, it was said, the Tribunal had wrongly relied both on the availability of exemptions as an aid to construction and the fact that it would be open to a requester (if laborious) to seek the historic disputed information from individual universities. Finally, Ms Carss-Frisk QC argued, the Tribunal had failed to explain why it did not accept the detailed evidence of UCAS’s witnesses on this point.

 

58.  I was not persuaded by this analysis. I have already found that the Tribunal correctly identified the relevant test to be applied in the light of Sugar (No. 2), as set out at paragraph 20 above. For present purposes the key question was therefore stage 1 of the three-part test it identified, namely whether the disputed information was “held by UCAS to any significant degree (not de minimis) in relation to the exercise of the Designated Function, even if it is also held in relation to other (possibly more important) functions?” (decision, [63(1)]).

 

59.  Having applied the correct legal test, the conclusions that followed were ultimately questions of fact for the Tribunal to decide. The Tribunal plainly had to consider all the evidence in the round. Its considered view was that there was a sufficient link between the information in question and the “provision and maintenance of a central applications and admissions service”. The Tribunal correctly explained that the test was not simply the managerial purpose to which UCAS applied the information, as the Designation Order was not defined in terms of whether the information was “held for” a particular institutional purpose within UCAS. It was apparently accepted by one of UCAS’s witnesses in the course of oral evidence that the historic data was needed from time to time in the course of carrying out the Designated Function. Mr Knight very fairly recognised that this passage in the Tribunal’s decision was “not the most fully reasoned”. However, it is unrealistic to expect a Tribunal to set out every single twist and turn in its assessment of the evidence and in its consequential reasoning. As Lord Hope DPSC observed in R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19, the Upper Tribunal “should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it” (at paragraph 25). The question is rather whether the Tribunal has done enough to show that it has applied the correct legal test and in broad terms explained its decision, which in my view this Tribunal did.

 

Conclusion

60.  It follows that I dismiss UCAS’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal, upholding the Information Commissioner’s Decision Notice FS50453565, therefore stands.

 

 

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 11 December 2014 Judge of the Upper Tribunal