The Association of Precarious Postdoctoral Researchers Limited v The Information Commissioner & Anor

The crux of the Appellant’s grounds of appeal was, in essence, that the Conference is a public authority for the purposes of FOIA, pursuant to the definition of a ‘public authority’ in section 3(1).

We address later the material aspects of the Appellant’s arguments in its grounds of appeal.

The powers of the Tribunal in determining this appeal are set out in section 58, as follows:

“(1)

If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordance with the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)

On such an appeal, the Tribunal may Review any finding of fact on which the notice in question was based.”.

In summary, therefore, the Tribunal’s remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based, and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

The proceedings were held by the cloud video platform. The Tribunal panel, the parties (except for the Commissioner) and the witness (see paragraph 21) joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

There were no interruptions of note during the hearing.

The Appellant was represented by its director, Dr Jesús Antonio Siller Farfán. The Commissioner did not appear and was not represented. The Conference was represented by Leo Davidson of Counsel.

The Tribunal read and took account of an open bundle of evidence and pleadings, a bundle of authorities and written skeleton arguments from each of the Appellant and the Second Respondent.

The open bundle included a witness statement on behalf of the Conference and the witness also gave evidence orally at the hearing. The witness’s evidence was given in their capacity as the then-current Chair of the Conference.  It is not necessary for us to identify this witness personally in this decision - therefore we merely refer to them as “the witness” and we mean no disrespect to them in doing so.

All of the contents of the bundles (including the written submissions of the parties and the witness evidence), as well as the oral submissions and oral evidence provided during the hearing, were taken into account, even if not directly referred to in this decision.

Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides:

“Any person making a request for information to a public authority is entitled—

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case, to have that information communicated to him.”.

In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority (although these are not relevant for current purposes).

Key to section 1(1) is the term “public authority”, which is defined in section 3(1).

So far as is relevant for current purposes, section 3(1) provides:

“In this Act “public authority” means—

(a)… 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.”.

In summary, section 3(1) defines a “public authority” by reference to three ‘gateways’: a public authority is either listed in Schedule 1, or is designated by order under section 5, or is a publicly-owned company as defined in section 6.

In respect of those three ‘gateways’, the only one relevant for the purposes of the appeal (see paragraph 44) is section 3(1)(b) – the definition of a “publicly-owned company” in section 6.

Section 3(2) addresses what constitutes a public authority ‘holding’ information for the purposes of FOIA. It provides:

“For the purposes of this Act, information is held by a public authority if—

(a)

it is held by the authority, otherwise than on behalf of another person, or

(b)

it is held by another person on behalf of the authority.”.

So far as is relevant for current purposes, section 6 provides:

“(1)

A company is a “publicly-owned company” for the purposes of section 3(1)(b) if—

…

(b)

it is wholly owned by the wider public sector…

(2)

For the purposes of this section—

…

(b)

a company is wholly owned by the wider public sector if, and only if, every member is a person falling within sub-paragraph (i) or (ii)—

(i)

a relevant public authority or a company wholly owned by the wider public sector, or

(ii)

a person acting on behalf of a relevant public authority or of a company wholly owned by the wider public sector

…

(3)

In this section—

“company” includes any body corporate;…

“relevant public authority” means any public authority listed in Schedule 1 other than—a government department, or any authority which is listed only in relation to particular information.”.

So far as is relevant for current purposes, section 50 provides:

“(1)

Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.

…

(3)

Where the Commissioner has received an application under this section, he shall either—

(a)

notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or

(b)

serve notice of his decision (in this Act referred to as a “decision notice”) on the complainant and the public authority.

…

(5)

A decision notice must contain particulars of the right of appeal conferred by section 57.”.

So far as is relevant for current purposes, section 84 provides:

“In this Act, unless the context otherwise requires—

…“body” includes an unincorporated association”.

The positions of the Commissioner and the Second Respondent were largely aligned in respect of material issues in the appeal. Consequently, partly for convenience and partly because of the Second Respondent’s representation in person at the hearing, the remainder of this decision generally refers only to the position or views of the Second Respondent. However, this should be taken as including reference to the Commissioner’s position or views if and to the extent applicable - and no disrespect to the Commissioner is intended by this approach.

As we have outlined, the legal framework of FOIA applies only to “public authorities” as defined in section 3(1). The fundamental issue in the appeal was whether the Commissioner was correct to determine, in the Decision Notice, that the Conference is not a public authority within the meaning of that section.

As a preliminary point, however, we would note that the Appellant’s grounds of appeal referred to the nature of the Decision Notice, which took the form of a letter which was sent by email to the Appellant. In summary, the Appellant considered that the form of the Decision Notice did not “have the archetypal format of [decision notices]” which the Commissioner regularly issues pursuant to section 50. The Appellant also referred to another, similar, decision notice of the Commissioner in respect of which there had been some dispute as to whether it was sufficient to provide the Appellant with a right of appeal pursuant to section 57.

In respect of that other decision notice, the Commissioner stated (in correspondence with the Appellant dated 2 September 2024) that it constituted a valid decision notice which could be appealed to the First-tier Tribunal, despite it taking the form of a letter.

In the current case, it was clear from the Commissioner’s response to the appeal that he considered that the Decision Notice was a valid notice issued under section 50, as he accepted that the appeal was brought against the Decision Notice under section 57.

For completeness, we find that the Decision Notice was a decision notice issued by the Commissioner pursuant to section 50. This is because, as we have noted, the Decision Notice was issued following the Appellant’s complaint about the response to the Request and it set out the Commissioner’s decision that the Conference is not a public authority.

Turning now to the main issue in the appeal, we start by considering the nature of the Conference. We accept the witness’s evidence regarding the following material points (and we make findings of fact accordingly):

The witness’s evidence also referred in some detail to matters relating to the structure and governance of the Conference, as well as the history of the Conference and other matters relating to its purposes. We do not consider it necessary to address such matters here, save to record our findings (as reflected in the witness’s evidence) that there are voting and other arrangements relevant to the operation of the Conference on behalf of the Entities and that the Conference does not have any power to bind any of the Entities, which are all independent and separate members.

The Appellant did not challenge the above position regarding the nature of the Conference. In particular, the Appellant accepted that the Conference is an unincorporated association.

However, the Appellant argued that:

In our view, the Appellant’s arguments turn on the definition of “company” as used in section 6.

The Appellant did not seek to argue that the Conference was a “governing body”, as specified in Schedule 1 of FOIA for the purposes of section 3(1)(a)(i), nor that it was an educational body or institution. The Appellant also did not seek to argue that the Conference is designated as a public body by an Order under section 5.

The Second Respondent did not dispute that each Entity is a public authority for the purposes of section 3(1) and we refer to the Entities accordingly below (but subject to our comments in paragraph 4).

The Second Respondent’s position, however, was that the Conference operates effectively as a members’ club, which exists for the benefit of its members (the Entities), but is separate from them. We find that to be the case, based on the witness evidence we have outlined and the other evidence before us. As we have already noted, we also find that the Conference is an unincorporated association and consequently it is not a legal entity having legal personality in its own right. We find that the Entities’ membership of the Conference is based on a contractual relationship between them.

In its submissions, the Appellant referred to the Entities as being “the ultimate beneficial owners (or members)” of the Conference. In that context, we considered that the Appellant was referring to ‘members’ as being the equivalent of shareholders or another form of ownership (as opposed to being a member of the Conference). Further, the Appellant’s skeleton argument stated that the question for the Tribunal to determine in the appeal was whether the Conference, as an unincorporated association which is owned (and/or controlled) entirely by public authorities, is a public authority. We address these comments of the Appellant later below.

The Appellant’s main contention, in essence, was that the Conference is a “publicly-owned company” for the purposes of section 3(1)(b) pursuant to the definition of that term in section 6(1)(b), as supplemented by section 6(2)(b). The Appellant considered that the Conference fell within the definition of a “publicly-owned company”, notwithstanding the Appellant agreeing that the Conference is an unincorporated association.

The Second Respondent accepted that the term “company” is not exhaustively defined in FOIA but rather that the definition, in section 6(3), states that the term “includes any body corporate” (emphasis added).

However, the Second Respondent’s position was that section 6(3), in referring to a “company”, was not intended to include an unincorporated association. This was based on the Second Respondent’s view that the starting point for interpretation should be the ordinary English use of the word ‘company’, as well as its argument that Parliament would have drafted the definition to expressly include an unincorporated association if that was its intention.

In support of that argument, the Second Respondent referred to the definition of “body” in section 84, which is stated to include an unincorporated association. The Second Respondent submitted that if Parliament’s intention had been to include unincorporated associations within section 6, then it could have included the term “unincorporated associations” in the definition of “company” in section 6(3), or it could have referred instead to “publicly owned body” (as opposed to a “publicly-owned company”). The Second Respondent further argued that Parliament could alternatively have used the word “person” which, by virtue of section 5 and Schedule 1 of the Interpretation Act 1978, “includes a body of persons corporate or unincorporate” unless the contrary intention appears.

The Second Respondent therefore contended that, as Parliament did none of the foregoing, section 6 was not intended to capture unincorporated associations.

In contrast, the Appellant’s position was that if Parliament had intended to limit the scope of section 6 to exclude unincorporated associations, then it would have defined the term “company” as “means any body corporate”, as opposed to the definition used in section 6(3) that the term “includes any body corporate” (emphasis added).

​The Appellant also referred to the definition of “body” in section 84 explicitly covering an unincorporated association, which it considered supported its arguments. However, we do not consider that this was relevant for the purposes of the Appellant’s arguments, as section 6(1) and section 6(2) do not use the term “body”. In section 6, that term is only used in the definition of “company”, in section 6(3), referring to a “body corporate” but we consider that the term “body corporate” has to be read as one complete term and is not the same as the term “body”. Also, whilst the term “body” is used in section 3(1), it is only applicable to the first two of the three gateways we referred to in paragraph 27 and, as we have noted, those are not relevant for the purposes of the appeal.

In support of its arguments that references to a “company” in section 6 should include an unincorporated association, the Appellant also referred to examples of other legislative provisions defining such term, including section 1121 of the Corporation Tax Act 2010, pursuant to which it is defined as meaning “any body corporate or unincorporated association…”. In our view, however, such examples actually negatethe Appellant’s arguments, because we consider that they illustrate that unincorporated associations are not considered to be caught by the normal definition of a ‘company’ and, likewise, that Parliament will make express provision to include them where it intends to do so.

We concur with the Second Respondent’s arguments we have referred to. In short, we find that an unincorporated association does not constitute a public authority for the purposes of FOIA, in the absence of an express provision to that effect.

We also consider that there is a fundamental flaw in the Appellant’s argument regarding the wording of section 6(1)(b) and section 6(2(b), when applied to the facts of this case. As we have found, the Conference is not a legal entity and the Entities’ relationship with the Conference is based on a contract. Accordingly, there is no question of the Conference being owned by the Entities. It follows that section 6, which is predicated on the concept of ownership, cannot apply to the Conference.

For those reasons, the Appellant’s submissions (which we noted in paragraph 47) regarding the Entities being the owners of, or ‘controlling’, the Conference are misconceived, as an unincorporated association is not owned by its members. As the Appellant accepted that the Conference is an unincorporated association, we consider that this illustrates a misunderstanding on the Appellant’s part as to the nature of an unincorporated association.

Accordingly, regardless of the Appellant’s arguments as to the meaning of the term “company” for the purposes of section 6, section 6 could not apply in any event because the Entities do not own the Conference. In other words, even if the Appellant was correct that the term “company” in section 6 includes an unincorporated association (and therefore the Conference), the Conference would still not fall within the definition of a “publicly-owned company” because the Conference is not owned by the Entities.

Indeed, our reasoning in the preceding paragraph also supports our earlier view that section 6 is not intended to apply to unincorporated associations. This is because unincorporated associations, by their very nature, cannot be ‘owned’ and consequently section 6 (which deals with whether a company is publicly owned) cannot have been intended to apply to unincorporated associations. In our view, this also demonstrates that it was not necessary for Parliament to expressly exclude unincorporated associations when referring to a “company” in section 6.

The Appellant expressed concerns that any finding by the Tribunal that the Conference is not a public authority would result in there being a lacuna, to the effect that FOIA would be circumvented in respect of the Entities as public authorities. However, we consider such concerns to be misplaced, because each Entity would remain subject to FOIA notwithstanding our finding that the Conference itself is not. In that regard, the witness gave evidence during the hearing to the effect that, in their view, each Entity would be required to respond to a request for information under FOIA. Therefore our finding does not equate to any circumvention of FOIA for any Entity, as it does not preclude requests for information under FOIA being made to any Entity (as opposed to the Conference).

In a similar vein (and as suggested by Mr Davidson during the hearing), it is possible that the Conference may hold information on behalf of an Entity. However, the route to requesting any such information, if it is held, is to contact an Entity directly. As provided by section 3(2)(b), information is held by a public authority for the purposes of FOIA if it is held by another person on behalf of the authority.

We would conclude by also noting that Dr Siller Farfán argued, during the hearing, that companies limited by guarantee had no owners but were still covered by FOIA and he submitted that the Appellant’s arguments regarding the status of Conference should be considered in that context. We consider that argument to be misconceived, as it does not take into account the fact that companies limited by guarantee are creatures of statute and have recognised legal personality. In our view, a company limited by guarantee is an example of a “company” which would be caught by the relevant provisions of section 6, but that is not something we needed to determine in the appeal, (as no company limited by guarantee is involved). In contrast, the Conference is not a company (but rather an unincorporated association), for the reasons we have given.

As we have noted:

In paragraphs 35 and 36, we referred to another decision notice of the Commissioner (which was similar to the Decision Notice) and to the Commissioner’s correspondence dated 2 September 2024 to the effect that it constituted a valid decision notice which could be appealed to the First-tier Tribunal. In that correspondence, though, the Commissioner expressly accepted that such decision notice was in breach of section 50(5) as it did not provide information regarding the right of appeal under section 57.

There was no such concession by the Commissioner in respect of the Decision Notice and, indeed, the question of the Decision Notice’s compliance with section 50(5) was not addressed by the Commissioner in the appeal.

However, as we have noted, section 50(5) specifies that a notice issued under section 50 must contain particulars of the right of appeal conferred by section 57. The Decision Notice did not include any such information.

Accordingly, we find that the Decision Notice did not comply with the requirements of section 50(5). However, we consider that this is incidental to the main issue before us in the appeal. Consequently, notwithstanding the provisions of section 58, we consider that it is not appropriate for us to substitute the Decision Notice. This is because that finding does not affect the relevant conclusion reached in the Decision Notice (and which accords with this decision); namely that the Conference is not a public authority for the purposes of FOIA. We therefore consider that substituting the decision notice would serve no purpose.

For all of the reasons we have given, we find that the Decision Notice was correct in stating that that Conference is not a public authority for the purposes of FOIA.

We therefore dismiss the appeal.