Court of Session allows appeal against refusal of FOI request after ruling election contract information ‘clearly held’ by council

The Inner House of the Court of Session allowed an appeal against a decision of the Scottish Information Commissioner, who upheld the council’s decision to refuse part of the FOI request for information relating to the outsourcing of electoral services on the basis that the local authority did not “hold” the information.

FOI request

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Glennie, heard that in August 2013 Aberdeen City Council issued an invitation to tender (ITT) for the purpose of procuring a number of suppliers to be appointed to a framework agreement to provide electoral services for the returning officers of the city council and Aberdeenshire Council.

The services would be divided into lots, such as printing and issuing poll cards, postal vote management, electronic voting and electronic counting, and each council would enter into separate “call-off contracts” with the successful suppliers as and when any services were required.

In January 2018 the appellant, Dr Ian Graham, made an FOI request to Aberdeenshire Council to see; (1) a list of the contracts called off by the council from this framework agreement; (2) for each of these contracts a copy of the order and a copy of the invoice; (3) confirmation whether the council paid the invoice and (4) if so, whether the council reclaimed the input VAT on the invoice.

The council refused to provide a list of the contracts called off by it from the framework agreement on the basis that it did not “hold” that information within the meaning of section 3(2)(a)(i) of the Freedom of Information (Scotland) Act 2002 (FOISA).

The council’s position in response to the appellant’s request for a review was that the information belonged to and was “being held on behalf of the returning officer”, who acted independently of the council “when carrying out this distinct and separate role”.

‘Separate legal entity’

The appellant applied to the Scottish Information Commissioner, arguing that while it was accepted that the office of returning officer was distinct and separate from the council, the documents must also be held by the local authority for the purposes of tax, finance and public accountability legislation.

The council agreed that it did “hold” for its own purposes information relating to parts (2), (3) and (4) of the appellant’s request for information in respect of local election expenses, but argued in relation to part (1) that while all call-off contracts were handled and signed off by it, the council was simply acting as a “contracting authority” for the returning officer as an “independent legal entity”.

By Decision Notice 206/2018 dated 18 December 2018 the council’s decision was upheld, after the Information Commissioner held that “procurement for the local authority elections is a function of the returning officer, and not of the local authority, and that the returning officer was a distinct legal entity, separate from the council, which was holding the information on behalf of the returning officer.

The appellant appealed to the Court of Session under section 56 of FOISA, which allows an appeal to be taken on a point of law.

‘Error of law’

It was submitted that the Information Commissioner adopted a “legalistic approach” to the question of whether the information was held by the council, focusing unduly on the technicalities of election law and the independent status of the returning officer when a broader “more holistic approach” was required.

He approached the legislation on the basis that there was a “binary choice” to be made between the information being held by the council in its own right and the information being held by it on behalf of the returning officer, when in truth the answer might be that it was held in both capacities.

The commissioner appeared to have considered that, because the procurement exercise was conducted for the purpose of enabling the returning officer to carry out his independent duties in relation to the conduct of local elections, then it followed that all the information was held on behalf of the returning officer, ignoring the fact that the council clearly conducted the procurement exercise and entered into contracts pursuant thereto on its own behalf.

This, it was argued, amounted to an “error of law”.

‘Information clearly held by council’

Allowing the appeal, the judges ruled that there was “no proper basis” on which the Information Commissioner’s decision could be upheld, adding that information sought was “clearly held” by the council within the meaning of FOISA.

Delivering the opinion of the court, Lord Glennie said: “There can be no doubt in this case that, subject to section 3(2)(a)(i) of the Act, the information which the council has about the ITT, the framework agreement and the call-off contracts, and matters relating to the performance of those contracts, is ‘held by’ the council.

“The council agrees to provide the services to the returning officer. To do so it requires to contract with others for the provision of those services.

“The council bears the responsibility for carrying out the procurement process, at all stages, in a lawful and satisfactory manner. The council bears the responsibility of ensuring that the suppliers perform according to the terms of the particular call-off contract for which they have been selected, and enforcing performance in the event of default. It is to the council that the supplier looks for payment in accordance with the terms of the call-off contract.

“In short, although the purpose of the contracts is to enable the council to provide electoral services to the returning officer, the contracts – both the framework agreement and the call-off contracts – are all contracts to which the council, not the returning officer, is a party, both in form and in substance. It acts in its own right and not as agent for the returning officer.”

He added: “It appears from the Information Commissioner’s decision letter that he was influenced by the fact that the returning officer was independent of the council; and that the purpose of the procurement process carried out by the council was to procure a number of suppliers to provide electoral services to the returning officer.

“His thinking seems to have been that the suppliers were, by this process, brought into some direct relationship with the independent returning officer; and that once this had happened the council had no further role to play in the process. This is not correct, for the reasons set out above.”

The court remitted the matter remitted to the Information Commissioner to reconsider the appellant’s application in light of the views expressed.