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Neutral Citation Number:	2014 UKUT 557 AAC
Reported Number:
File Number:	GIA 1646 2014
Appellant:	The University and Colleges Admission Services
Respondent:	The Information Commissioner and Lord Lucas
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	11/12/2014
Date Added:	05/01/2015
Main Category:	Information rights
Main Subcategory:	Freedom of information - right of access
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 25. Information rights – freedom of information – public authorities – interpretation of the Freedom of Information (Designation as Public Authorities) Order 2011 Lord Lucas applied to the University and Colleges Admissions Service (UCAS) under the Freedom of Information Act 2000 (FOIA) for information about historical applications to universities and the predicted grades of applicants. UCAS, a private company, had been designated a public authority for certain purposes under the Freedom of Information (Designation as Public Authorities) Order 2011. It refused the request on the grounds, amongst others, that it was not a public authority in respect of any information relating to previous admissions cycles, that the information regarding the applications was exempt under section 43(2) of FOIA and that information about grades was not held and would require the creation of new data. Lord Lucas complained to the Information Commissioner, who decided that UCAS was wrong regarding the effect of the Designation Order but accepted its submission regarding section 43(2) and the need for new information to be created. UCAS’s appeal was rejected by the First-tier Tribunal (F-tT), which held that the correct approach involved applying the decision BBC v Sugar (No. 2) [2012] UKSC 4. This required a three-part test, the first stage of which involved deciding whether the information could be said to be “connected with or arising out of” the designated function. UCAS appealed to the Upper Tribunal (UT), arguing that the F-tT had erred in law by wrongly formulating the test, in rejecting the “dominant purpose” test and in holding that the disputed historical information “related to” the designated function. Among the legal issues before the UT was whether the designation of a body as a public authority under FOIA, in respect of particular functions, should be interpreted broadly, thereby increasing the scope of the application of FOIA, or narrowly. Held, dismissing the appeal, that: 1. FOIA was a constitutionally important piece of legislation which must be interpreted broadly. The focus of the Designation Order was necessarily on what was included in terms of functions of a public nature, not on what was excluded, and its primary aim was to ensure that bodies that exercised functions of a public nature were subject to the same degree of scrutiny under FOIA in relation to those functions as “ordinary” public authorities. Accordingly, the F-tT had identified the correct test for identifying whether or not information related to UCAS’s designated functions (paragraphs 39 to 47); 2. the F-tT’s consideration of the “dominant purpose” test had been sufficient (paragraph 54); 3. the F-tT had correctly identified the relevant test to be applied in the light of Sugar (No. 2) and the key question was 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 was also held in relation to other functions. The correct legal test having been applied, the conclusions that followed were ultimately questions of fact for the tribunal to decide (paragraphs 58 to 59).
Decision(s) to Download:	[2015] AACR 25ws.doc