Who counts as a public authority for FOI and the EIR?

What it is

Schedule 1 FOIA lists government departments, local authorities, NHS bodies, schools, police and many others. Some are covered only for certain information. FOISA has its own Schedule 1 and designations for Scottish authorities.

Who is covered

• Bodies listed in Schedule 1, in full or for specified information. FOIA s.3; Sch 1
• Bodies designated by order as exercising functions of a public nature or providing a service under contract. FOIA s.5
• Publicly-owned companies. FOIA s.6
• For the EIR, also bodies with public administrative functions or special powers, and bodies under public control. EIR reg 2(2)
• For Scottish authorities, the bodies in FOISA Schedule 1 and those designated under s.5. FOISA ss.3 and 5

Who is not

• Private contractors, unless designated or caught by the EIR tests; but information they hold on behalf of an authority is held by that authority. FOIA s.3(2)(b)

Who is responsible

The body itself must check whether it is covered, and for what information.

What it involves

1. Check Schedule 1 and designation orders.
2. For environmental information, apply the EIR tests.
3. Identify information held on your behalf by contractors.

If it goes wrong

Regulatory

The requester can complain to the regulator, which issues a decision notice requiring the authority to act. Either side can appeal to the First-tier Tribunal (General Regulatory Chamber), then on a point of law to the Upper Tribunal. Failing to comply with a notice can be certified to the High Court and dealt with as contempt.

Criminal

Altering, defacing, blocking, erasing, destroying or concealing a record with intent to prevent its disclosure after a request is an offence under FOIA s.77 (summary only, unlimited fine in England and Wales), and under EIR reg 19.

Civil

No right to compensation. Enforcement runs through the regulator and the tribunal.