ICO response
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24 July 2015

Case Reference Number FS50587347

Dear Mr Cross

Your information request to the Skills Funding Agency

Thank you for your correspondence in relation to your information request to the Skills Funding Agency (SFA). Unfortunately, for the reasons set out below, we are not able to consider your complaint.

The ICO’s powers derive directly from the Freedom of Information Act (FOIA). This places duties on public authorities to respond to requests for information. The definition of a ‘public authority’ is given in section 3 of FOIA. In responding to your request the SFA explained that it was not covered by this definition and it was therefore not under an obligation to consider your request in accordance with FOIA. In the interests of good practice though, the SFA does seek to handle information requests as if the legislation does apply. However, the overall effect of the SFA’s formal exclusion from FOIA is that we do not have the remit to investigate any complaint made against the SFA from a freedom of information perspective.

It is important to point out that the ICO has already been required to test the relationship between the SFA and FOIA as part of a previous complaint made to us. It may help if I briefly explain our findings on that case.

The SFA was established by the Apprenticeships, Skills, Children and Learning Act 2009 and is a successor agency to the Learning and Skills Council (LSC), which closed in 2010. The LSC was subject to FOIA. However, it appears that no provision was made under the enacting legislation to transfer the FOIA responsibilities to the SFA.

During our investigation it was noted that the SFA is listed as an executive agency of the Department for Business Innovation and Skills. Executive agencies will in most cases be classed as part of their parent government department for the purposes of FOIA and, by virtue of this, any information held by the executive agency would be brought within the reach of the legislation. However, the SFA is not a normal case. Executive agencies exercise functions on behalf of the Secretary of State and as such do not have a separate legal status. The SFA, by contrast, is a separate legal entity and exercises statutory functions and holds information in its own right.

The outcome of our considerations was that we decided the ICO could not enforce any obligations under FOIA because the SFA is not a public authority according to the section 3 definition. Transferring this principle across, the ICO would not be in a position now to pursue the issues you have brought to our attention and therefore the case will be closed.

I appreciate this will be disappointing but I trust my letter has clearly demonstrated why no further action can be taken by the ICO on this matter.

If we can be of any further assistance please contact me on the number below or our Helpline on 0303 123 1113 quoting your case reference number. You may also find some useful information on our website at www.ico.org.uk.

Yours sincerely,

[name of case officer]
Case Officer
Information Commissioner's Office
Tel - 01625545595

Dear Mr [Case worker],

Thank you for your email. Under Section 84 of the Freedom of Information Act 2000, "government department" includes: "any other body or authority exercising statutory functions on behalf of the Crown, ..." [subject to certain exceptions none of which are relevant here.] All government departments are subject to the Act by virtue of schedule 1.

Schedule 4 of the Apprenticeships, Skills, Children and Learning Act 2009 provides that: "The Chief Executive [of Skills Funding] is to perform the functions of the office on behalf of the Crown." and sets out what those functions are. These are clearly statutory functions because they are set out in an Act of Parliament and they are clearly being performed on behalf of the Crown.

This explains why the authority did not need to be added to schedule 1 even though its predecessor was listed in Schedule 1.

Please reconsider.

regards,

[requester]

Dear Mr [caseworker],

Further to my email below, Section 64 of the Deregulation Act 2015 appears to have abolished the post of Chief Executive of Skills Funding transferring the property, rights and liabilities to the Secretary of State. In any event the Agency remains part of government and was subject to FOI when I made my request.

regards,

[requester]

See also: https://www.whatdotheyknow.com/request/n...