Dr Jesus Antonio Siller Farfan v The Information Commissioner & Anor

Introduction

1. This is an appeal against a decision by the Commissioner referenced IC-306285-X5C4 dated 19 August 2024 (“the Decision”) by which the Commissioner decided that the Russell Group of Universities (“RGOU”) is not a public authority as defined in s3 of the Freedom of Information Act 2000 (“FOIA”) and was not therefore obliged to respond to an information request made by the Appellant.

2. The parties were agreeable to the appeal being determined on the papers. Having considered the hearing bundle and having obtained supplemental written submissions from all parties, we are satisfied that we can properly determine the appeal without a hearing, in accordance with s32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. The Appellant

3. The appeal was issued on 2 September 2024 in the name of The Association of Precarious Postdoctoral Researchers Ltd (“the Company”). However, the Company did not make the request for information which is the subject of the appeal, nor did it complain to the Commissioner about RGOU's response to the request, nor was it the recipient of the Decision. It was, instead, Dr Jesus Antonio Siller Farfan who made the request, who made the complaint and to whom the Decision was addressed. The Company, of which Dr Siller Farfan is a director, was only established in early July 2024 after the request was made and rejected and after Dr Siller Farfan complained to the Commissioner.

4. On 20 June 2025, the Tribunal directed that Dr Siller Farfan be substituted for the Company as the Appellant. RGOU

5. RGOU is company limited by guarantee, incorporated on 6 February 2007. It currently has 24 members. They are: the University of Birmingham, t he University of Bristol, the University of Cambridge, Cardiff University, the University of Edinburgh, the University of Glasgow, Imperial College London, King’s College London, the University of Leeds, the University of Liverpool, London School of Economics, the University of Manchester, Newcastle University, the University of Nottingham, the University of Oxford, Queen’s University Belfast, the University of Sheffield, the University of Southampton, University College London, the University of Warwick, Durham University, t he University of York, the University of Exeter and Queen Mary University London.

6. RGOU’s evidence is that: it is a policy organisation providing confidential public affairs advice to its members, and advocacy to the UK Government on behalf of its members; its mission is to advance and champion the positive economic, societal and cultural impacts of its members and deliver a supportive regulatory environment for them to operate in; RGOU is not an educational institution in any shape or form. The Issue

7. In short order, the issue in dispute is whether RGOU is subject to FOIA because it is a public authority as defined by s3(1) FOIA.

8. The relevant effect of s3(1) FOIA is that a body is a public authority if, and only if: (a) it is listed in Schedule 1 to FOIA; (b) it is designated by order under s5 FOIA; or (c) it is a publicly owned company as defined by s6 FOIA.

9. It is not in dispute that RGOU is not listed in Schedule 1 to FOIA, whether by name or category.

10. It is not in dispute that RGOU has not been designated by order under s5 FOIA.

11. What is in dispute, and falls to us to determine, is whether RGOU is a publicly owned company within the meaning of s6 FOIA.

12. We set out s6 FOIA below so that the reader may have its provisions in mind as they then read our following summary of the parties’ submissions on the point.

13. S6 FOIA provides as follows: (1) A company is a “publicly-owned company” for the purposes of section 3(1) (b) if— (a) it is wholly owned by the Crown, (b) it is wholly owned by the wider public sector, or (c) it is wholly owned by the Crown and the wider public sector. (2) For the purposes of this section— (a) a company is wholly owned by the Crown if, and only if, every member is a person falling within sub-paragraph (i) or (ii)— (i) a Minister of the Crown, government department or company wholly owned by the Crown, or (ii) a person acting on behalf of a Minister of the Crown, government department or company wholly owned by the Crown, (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, and (c) a company is wholly owned by the Crown and the wider public sector if, and only if, condition A, B or C is met. (2A) In subsection (2)(c)— (a) condition A is met if— (i) at least one member is a person falling within subsection (2)(a)(i) or (ii), (ii) at least one member is a person falling within subsection (2)(b)(i) or (ii), and (iii) every member is a person falling within subsection (2)(a)(i) or (ii) or (b)(i) or (ii), (b) condition B is met if— (i) at least one member is a person falling within subsection (2)(a)(i) or (ii) or (b)(i) or (ii), (ii) at least one member is a company wholly owned by the Crown and the wider public sector, and (iii) every member is a person falling within subsection (2)(a)(i) or (ii) or (b)(i) or (ii) or a company wholly owned by the Crown and the wider public sector, and (c) condition C is met if every member is a company wholly owned by the Crown and the wider public sector. (3) In this section— “company” includes any body corporate; “Minister of the Crown” includes a Northern Ireland Minister. “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. The Request

14. On 13 May 2024, the Appellant made this request (“the Request”) of RGOU: “Under the Freedom of Information Act (2000), I would like to ask the Russell Group for the following: "Electronic communications (e-mails) between the UCEA (Universities and Colleges Employers Association) and the Russell Group (RG) that took place between the 01-06-2023 and the 13-05-2024 and that dealt with the issue of 'lobbying' from the RG to ensure that greater flexibility could be offered in the process of JNCHES negotiations and, specifically, in the pay spine.”

15. On 13 May 2024, RGOU responded to the Request, saying that RGOU, as an organisation, does not fall under the scope of FOIA and so RGOU was not able to comply with the Request.

16. On 13 May 2024, the Appellant complained to the Commissioner. The Commissioner considered the position. The Decision

17. On 19 August 2024, the Commissioner issued the Decision to the Appellant. It read thus: “We have now reached a conclusion that the Russell Group is not a public authority for the purposes of FOIA. As this organisation is not a public authority, as defined in section three of FOIA, we are unable to consider your complaint and this case will now be closed. FOIA only covers access to information held by public authorities. Organisations that are not public authorities under FOIA do not have a duty to respond to information requests.” The Appeal

18. On 2 September 2024, the Appellant issued a Notice of Appeal against the Decision, supported by a number of exhibits.

19. By the grounds of appeal, the Appellant submits, in summary, that RGOU is covered by FOIA by virtue of section 3(1) (b) FOIA which provides that a company is a public authority if it is a publicly-owned company as defined in s6 FOIA. Specifically, the Appellant relies upon s6(1)(b) FOIA, contending that RGOU is wholly owned by "the wider public sector". In this regard, the Appellant argues that RGOU is wholly owned by its members, 24 universities, whose governing bodies are themselves all listed as public authorities in paragraph 53(1) of Schedule 1 to FOIA ( or, in relation to a Northern Irish member, in paragraph 55 of Schedule 1 to FOIA).

20. The Appellant further relies on a statement from Thomas Brake, a former Member of Parliament for Carshalton and Wallington from 1997 to 2019. By that statement, Mr Brake states the following: a. He was part of the Protection of Freedoms Public Bill Committee. b. The Protection of Freedoms Act 2012 amended s6 FOIA to modify the definition of a publicly owned company for the purposes of FOIA to include companies entirely owned by two or more public authorities. c. Since RGOU is a company wholly owned and funded by publicly funded Universities, Mr Brake would ordinarily expect RGOU to be subject to FOIA. The Commissioner's Response to the appeal

21. By a Response to the appeal dated 11 November 2024, the Commissioner submits, in summary: a. a company is wholly owned by the wider public sector if every member (which generally means shareholders) is a relevant public authority or a company wholly owned by the wider public sector ( s6(2) (b)(i) FOIA). Companies limited by guarantee do not have shares or shareholders. RGOU, being limited by guarantee, does not therefore have any “owners” as such, as a matter of company law. It is also legally separate from its members. b. In addition, RGOU members are 24 university institutions rather than the governing bodies of those universities. Furthermore, the members are not companies wholly owned by the wider public sector, rather they are universities which are institutions. Universities are part of the public sector in the sense that they receive funding directly from the government. However, universities are independent bodies. Public sector companies are usually controlled by the government, but most universities are an exception to this rule. c. Accordingly, RGOU cannot be said to be wholly owned by the wider public sector, nor is RGOU itself the governing body of an institution. The Appellant’s Reply to the Commissioner’s Response

22. By a Reply to the Commissioner’s Response dated 26 November 2024, the Appellant submits, in summary: a. For the purposes of the Companies Act 2006 , what defines a limited company is whether the limitation of “members” is undertaken through share issuance or through guarantee. All companies have members. b. The Protection of Freedoms Act 2012 was intended to extend the scope of FOIA to provide greater transparency, specifically that s6 FOIA should be afforded an expansive, liberal reading to improve transparency and accountability. c. The governing body is the entity’s primary decision-making organ. There should be no distinction between a body corporate or a public authority and its governing body in practice or in principle, where such distinction might result in the following: i. the governing body of a university claiming that any and all relevant information outwith its minutes or agendas belongs to the university itself is are thus exempt from disclosure under FOIA. ii. the governing body of a university creating a holding company for vast swathes of departments or divisions of a university where its sole member would be the university itself and not its governing body, thus bypassing FOIA. RGOU’s Response to the appeal

23. By Response to the appeal dated 28 February 2025, RGOU submits, in summary: a. RGOU is not a publicly owned company because it does not fall within any provision of s6 FOIA, that is to say: i. It is not wholly owned by the Crown ( s6(1) (a) FOIA). ii. It is not wholly owned by the wider public sector ( s6(1) (b) FOIA). iii. It is not wholly owned by the Crown and the wider public sector ( s6(1) (c) FOIA). b. In relation to s6(1) (b) FOIA (wholly owned by the wider public sector) and by way of agreement with the Commissioner’s Response on this issue: i. RGOU, being a company limited by guarantee, does not have owners as a matter of company law. ii. In addition, RGOU members are the 24 university institutions rather than the governing bodies of those universities. Furthermore, the members are not companies wholly owned by the wider public sector, rather they are universities which are institutions. Universities are part of the public sector in the sense that they receive funding directly from the government. However, universities are independent bodies. Public sector companies are usually controlled by the government, but most universities are an exception to this rule. c. Accordingly, RGOU cannot be said to be wholly owned by the wider public sector, nor is RGOU itself the governing body of an institution. d. Additionally, 2 of RGOU’s 24 members, the Universities of Glasgow and Edinburgh, do not fall within s6(2) (b)(i) FOIA: they are neither a relevant public authority nor a company wholly owned by the wider public sector ( s6(2) (b)(i) FOIA), nor are they a person acting on behalf of a relevant public authority or of a company wholly owned by the wider public sector ( s6(2) (b)(ii) FOIA). Consequently, RGOU does not satisfy the condition set out in s6(1) (b) FOIA, namely that every member falls within s6(2) (b)(i) or (ii) FOIA. e. As to the status of the University of Glasgow and the University of Edinburgh, these universities (and, if and to the extent that this is relevant, their respective governing bodies) are not relevant public authorities as defined in . s6(3) FOIA because they are not listed in Schedule 1 to FOIA While they are public authorities for the purposes of the Freedom of Information (Scotland) Act 2002 (“FOISA”), that does not bring them within scope of s6(3) FOIA, where the definition of “relevant public authority” is framed by reference solely to Schedule 1 to FOIA. Indeed, the fact that the University of Edinburgh and the University of Glasgow are public authorities under FOISA is a further reason why neither of those universities nor their respective governing bodies is a public authority under FOIA. FOIA and FOISA are mutually exclusive: that is to say, a person or body may be a public authority under FOIA or FOISA but not under both.

24. RGOU relies on a witness statement made by Paul Purcell, Director of Operations for RGOU. Mr Purcell leads on all operational issues for RGOU including governance, legal, HR, Finances, IT and Estates, which includes ensuring that RGOU is compliant with all statutory requirements.

25. Mr Purcell explains that the individual members of RGOU in England, Wales and Northern Ireland are subject to FOIA, and the two members in Scotland are subject to FOISA. He explains that RGOU is incorporated in England and Wales and operates UK wide. It is not incorporated or based in Scotland and does not operate solely or primarily in Scotland. Since its incorporation, RGOU has not been subject to FOIA or FOISA, and has not responded to requests made to it, nor made any disclosure of information, pursuant to either legislation.

26. Mr Purcell explains that RGOU is not named in Schedule 1 to FOIA, nor is it listed within parts of Schedule 1 FOIA or FOISA which relate to the education sector. Appellant’s Reply to RGOU’s Response

27. By a Reply to RGOU’s Response dated 14 March 2025, the Appellant submits, in summary: a. A ”company” within the meaning of FOIA is any body corporate, whether limited by shares or guarantee. b. The universities are not to be distinguished from their governing bodies. That is a pretended distinction. c. RGOU satisfies the requirement of s6(2) (b)(i) FOIA which places it in scope of s3(1) (b) FOIA, that is to say it is a relevant public authority or a company wholly owned by the wider public sector. 22 of the 24 universities are covered by paragraphs 53 and 55 of Schedule 1 to FOIA. The issue in dispute arises from the partial ownership of RGOU by the Universities of Edinburgh and Glasgow. d. S103 of the Protection of Freedoms Act 2012 expanded the meaning of “publicly owned company”, addressing the mischief enabled by a previous loophole which provided that only companies owned by a single entity of the public sector were subject to FOIA. e. The fact that the Universities of Edinburgh and Glasgow are located in Scotland is irrelevant. S103 of the Protection of Freedoms Act 2012 extends to Scotland because it applies to the whole of the United Kingdom and Ireland. Moreover, all companies in the United Kingdom are governed by the framework of the Companies Act 2006 . f. By analogy, the Student Loan Company (SLC) Ltd (“SLC”) is owned by the Scottish, English, Welsh and Northern Irish government administrations and falls within s6 FOIA. Partial Scottish ownership does not disturb that. g. It is unreasonable to read the Protection of Freedoms Act 2012 and FOIA and conclude that Parliament intended to cover multi-ownership schemes unless such ownership spanned across Scotland and any of England, Wales, and/or Northern Ireland. h. The Tribunal should construe ownership by the wider public sector with regard for Pepper (Inspector of Taxes) v Hart ( [1992] UKHL 3 ) given that this particular feature of “ownership by the wider public sector” was discussed by parliamentarians during the Committee Stage of the Protection of Freedoms Bill 2012: “... Companies that are wholly owned by more than one public authority, or by the Crown and one or more of the schedule 1 public authorities, are not currently subject to the Freedom of Information Act. As we have discussed, it should not matter whether a company is wholly owned by one public authority or by more than one public authority. All such companies should be equally accountable and should, therefore, be subject to the Act . ” [Rt Hon Lynne Featherstone, Minister for Equalities, 12 May 2011]. i. Scottish universities are public authorities accountable through the Human Rights Act 1998 and the Equality Act 2010 , both Acts covering Scotland. Therefore, considering Scottish universities as part of the wider public sector passes the test of the man on the Clapham omnibus. It is reasonable to consider that the second arm of s6(2) (b)(i) FOIA encompasses them given the circumstances of this case, “the mischief law”, and the intent of Parliament.

28. The Tribunal considered the appeal on the papers on 19 June 2025 and identified specific matters in relation to which it directed further submissions from the parties on 20 June 2025. The Commissioner’s further submissions

29. Consequently, on 17 July 2025, the Commissioner filed further submissions. He submits, in summary: a. While RGOU is clearly a separate legal entity from the 24 universities which make up its membership, given it would appear they act as guarantors akin to shareholders but with different incentives and responsibilities, RGOU is capable of legal ownership for the purpose of section 6 FOIA, and the 24 member universities are the legal owners of RGOU. b. RGOU is made up 24 universities. The governing bodies of 22 of the members are designated as public authorities within Schedule 1 to FOIA. However, the University of Edinburgh and the University of Glasgow do not fall within Schedule 1 to FOIA and so it cannot be said that all RGOU’s members are relevant public authorities. c. The 24 member Universities are not companies wholly owned by the wider public sector. Universities are institutions which are part of the public sector in the sense that they receive some funding directly from the government however they are independent bodies. Public sector companies are usually controlled by the government, but most universities are an exception to this rule. RGOU cannot therefore be said to be wholly owned by the wider public sector. d. The 24 universities which make up the membership of RGOU are not acting on behalf of a company owned by the wider public sector as they are independent from government. e. While RGOU may be capable of legal ownership by its member guarantors for the purpose of s6 FOIA, it cannot be said to be wholly owned by a relevant public authority (as 2 of its members are not listed in Schedule 1 to FOIA) or a company wholly owned by the wider public sector as universities are institutions independent from government (despite receiving some funding from government). f. Notwithstanding the above, 22 of the member universities are relevant public authorities under FOIA (the other two are public authorities under FOISA) and despite the Commissioner’s position that RGOU is not a public authority in its own right, RGOU will likely hold information on behalf of its members. It is open to the Appellant to submit information requests directly to the member universities. RGOU’s further submissions

30. On 25 July 2025, RGOU filed further submissions, summarised in paragraphs 31-43 below.

31. Like the Commissioner, RGOU was now content to accept that RGOU was capable of legal ownership within the meaning of s6 FOIA.

32. The members of RGOU, the 24 universities identified, are its legal owners within the meaning of s6 FOIA.

33. None of the 24 universities are in themselves public authorities listed in Schedule 1 to FOIA. Of 22 of those universities, their governing bodies are so listed, but not the universities themselves. Hence none of the members of RGOU are relevant public authorities.

34. Even if one disregards the distinction between universities and their governing bodies, and treats the two as being equivalent for the purposes of s6(1) (b) FOIA, that means that 22 of the 24 RGOU members are “relevant public authorities” and hence can be persons who fall within sub-paragraph (i) of s6(2) (b) FOIA on that basis. The remaining two members are the University of Glasgow and the University of Edinburgh. These two universities are not “relevant public authorities”. Indeed, they do not fall within either sub-paragraph (i) or (ii) of s6(2) (b) FOIA, on any basis for the following reasons: i. neither the University of Glasgow nor the University of Edinburgh is a relevant public authority. Neither of them is listed in Schedule 1 to FOIA. Nor are their governing bodies so listed. ii. the University of Glasgow and the University of Edinburgh are both “companies” within the definition in s6(3) FOIA i.e. they are corporate bodies. However, they are not wholly owned by the wider public sector.

35. None of the members of RGOU is wholly owned by the wider public sector. RGOU’s members are all autonomous bodies, not owned by any other public sector body. They receive some of their funding from other public bodies, and they are regulated by other public bodies: but they are not owned by their funders or regulators.

36. In relation to the University of Glasgow: a. the University was founded by Papal Bull in 1451 and derives its modern constitutional framework from the Universities (Scotland) Acts 1858 to 1966 and the Higher Education Governance ( Scotland) Act 2016 . These Acts establish the University’s main statutory bodies and officers, including the Court, the Senate, the General Council, the Chancellor, the Principal and Vice Chancellor, the Rector and the Senior Lay Member (Convener of Court). b. The Universities (Scotland) Act 1889 sets out that the University Court is a body corporate, which in effect holds all property which belongs to the University in trust on behalf of the University: a. Part I “Constitution of University Court”: Section 5 (3) The University Court shall be a body corporate with perpetual succession and a common seal, which shall be judicially noticed, and all the property, heritable and moveable, belonging to the University, or to any existing college forming part of the University at the passing of this Act , whether the title to such property has been taken in the name of the University or such college, or in name of any person or persons in trust for or on behalf of the University or such college, shall be and is hereby vested in the University Court. c. None of the current members of the University Court are public authorities, nor are they (or the University Court or the University of Glasgow) listed in Schedule 1 to FOIA. d. The requirements of s6 FOIA are not met by the University of Glasgow and it is not wholly owned by the wider public.

37. In relation to the University of Edinburgh: a. The University was established following a Royal Charter granted in 1582. It is now constituted by the Universities (Scotland) Acts 1858 to 1966, which make provision for three major bodies for University governance, including the Senatus Academicus, the General Council and the University Court. b. As with the University of Glasgow, the University Court is the University of Edinburgh’s governing body and is the legal persona of the University. It is also a body corporate by way of the Universities (Scotland) Act 1889. c. None of the current members of the University Court are public authorities and none of them (or the University Court or the University of Edinburgh) are listed in Schedule 1 to FOIA. d. The requirements of s6 FOIA are not met by the University of Edinburgh and it is not wholly owned by the wider public sector.

38. While both the University of Glasgow and the University of Edinburgh are corporate bodies, they are not wholly owned by the wider public sector nor are they public authorities listed in Schedule 1 to FOIA.

39. As regards s6(2) (b)(ii) FOIA, none of the members of RGOU act on behalf of any other person or body (including a company owned by the wider public sector) in relation to their membership of RGOU. Each of them acts on their own behalf.

40. Accordingly, RGOU does not fall within s6(2) (b) FOIA since it is not a company of which every member is a person falling within sub-paragraph (i) or (ii) of s6(2) (b) FOIA.

41. Given that neither the University of Glasgow nor the University of Edinburgh is a public authority under Schedule 1 to FOIA and hence neither is a relevant public authority under s6(3) FOIA, RGOU’s previous submission that FOIA and FOISA are mutually exclusive to the extent that either of the Universities of Glasgow and Edinburgh may be a public authority under one or other of those Acts but not under both, is probably of no practical importance. For present purposes what matters is that neither University is a public authority under Schedule 1 to FOIA (and hence neither is a “relevant public authority” under s6(3) FOIA). Even if (theoretically) it were legally possible for a body to be a public authority under both Acts, that would make no difference for present purposes. That said, there are various indications that the regimes under FOIA and FOISA are intended to be mutually exclusive: a. First, FOIA and FOISA have a different legal basis and status. i. FOIA is an Act of the Westminster Parliament. FOISA is an Act of the Scottish Parliament established under the Scotland Act 1998 . An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament: s29(1) of the Scotland Act 1998. By s29(2) of that Act (so far as material): A provision is outside that competence so far as any of the following paragraphs apply— (a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland, (b) it relates to reserved matters … ii. “Reserved matters” are defined by s30(1) and Schedule 5 Scotland Act 1998 . By Schedule 5 Part II Heading B13 of that Act , the following is a reserved matter: B13. Access to information Public access to information held by public bodies or holders of public offices (including government departments and persons acting on behalf of the Crown). Exception Information held by– (a) the Parliament, (b) any part of the Scottish Administration, (c) the Parliamentary corporation, (d) any Scottish public authority with mixed functions or no reserved functions, unless supplied by a Minister of the Crown or government department and held in confidence. iii. Although FOISA was passed after FOIA, at the time when FOIA was passed the Scotland Act 1998 already conferred only a limited competence on the Scottish Parliament in relation to access to information. It is a reasonable inference that FOIA was intended to deal with freedom of information matters falling outside the competence of the Scottish Parliament, while leaving the Scottish Parliament to legislate for such matters insofar as they fell within its competence. In other words, the regimes were intended to be mutually exclusive b. Second, FOIA was not intended to deal with freedom of information matters falling within the legislative competence of the Scottish Parliament: i. s80 FOIA specifically excludes various Scottish bodies from the power to make orders under s4(1) or s5 FOIA (that is, orders adding further bodies as FOIA public authorities). ii. paragraph 237 of the Explanatory Notes in relation to FOIA say this as regards s80 (emphasis added): This section provides that no order may be made under section 4(1) or 5 in respect of the Scottish Parliament, any part of the Scottish Administration, the Scottish Parliamentary Corporate Body or any Scottish public authority with mixed functions or no reserved functions within the meaning of the Scotland Act 1998 . The power conferred by section 74(3) does not include power to make provision in relation to information held by these bodies. The Scottish Parliament has legislative competence in relation to freedom of information for these bodies. Third, and specifically in relation to universities, Schedule 1 to FOIA is drafted so as not to apply to Scottish Universities. c. Fourth, there is ICO guidance as to when a company will fall within s6 FOIA, and when it will fall within s6 FOISA (which is the equivalent provision in FOISA). i. The guidance See: https://ico.org.uk/for-organisations/foi/freedom-of-information-and-environmental-information-regulations/public-authorities-under-foia/ clearly envisages that a company will be caught by either s6 FOIA or s6 FOISA (but not both). The guidance reads as follows: Scottish companies owned by public authorities based elsewhere in the UK. You are a public authority for the purposes of FOIA if you are a company registered in Scotland but you are fully owned by a public authority in England, Wales or Northern Ireland, or covering the whole of the UK for the purposes of FOIA. This is rather than being a public authority for the purposes of The Freedom of Information (Scotland) Act 2002 (FOISA). Section 6 of FOISA states that, to be a Scottish public authority, you need to be wholly owned by a public authority named at Schedule 1 of FOISA. For example, Dounreay Site Restoration Ltd (DSRL) is a wholly owned subsidiary of the Nuclear Decommissioning Authority (NDA). Although DSRL is registered in Scotland, the NDA is listed in Schedule 1 of FOIA, and therefore DSRL is a public authority under FOIA and not FOISA. ii. Accordingly, the reference in s6(3) FOIA to a “relevant public authority” needing to be a “public authority listed in Schedule 1” must mean listed in Schedule 1 to FOIA only, and not also or instead listed as a public authority in any other Schedule 1 in any other legislation, including being listed in any equivalent schedule in FOISA.

42. In relation to the Appellant’s submissions regarding SLC: a. SLC describes itself in its annual accounts as a public authority and a wholly owned public authority, but that is not necessarily the same as being a public authority for the purposes of FOIA. b. SLC’s website indicates that it regards itself as a FOIA public authority but there is no explanation on the website as to the legal basis for this. c. SLC’s website indicates that its owners are the UK Government’s Department for Education and the devolved governmental administrations of each of Scotland, Wales and Northern Ireland, in other words government bodies which RGOU suggests might be understood by SLC as “the Crown”, so that SLC views itself as wholly owned by “the Crown”. Accordingly, it seems likely that SLC views itself as a FOIA public authority on the basis of understanding itself to be a publicly owned company wholly owned by the Crown within s6(1) (a) FOIA. d. There does not appear to be any decision of any Court or Tribunal on the question of whether the SLC is a FOIA public authority, or on what basis, and/or as to whether this is correct. e. By contrast, it is clear that RGOU is not wholly or partially owned by the Crown. Accordingly, the only way in which RGOU (which is not itself listed by name or category within Schedule 1 to FOIA), could be a FOIA public authority is under s6 FOIA as a publicly owned company – but only if it falls within s6(1) (b) FOIA and is wholly owned by the wider public sector (excluding the Crown). RGOU does not do so. f. The position of SLC is not relevant or comparable to that of RGOU due to their wholly different ownership and positions. Comparing the position of SLC and RGOU does not assist the Tribunal.

43. RGOU’s further written submissions were supported by a further witness statement from Mr Purcell, who attests to the legal status and constitution of the Universities of Glasgow and Edinburgh as set out in RGOU’s submissions. He also explains his understanding that: none of the members of RGOU is wholly owned by the wider public sector; they are all autonomous bodies, not owned by any other public sector body; while members of RGOU receive some of their funding from other public bodies and they are regulated by public bodies, they are not owned by these funders or regulators; from his dealings with RGOU’s members, he can confirm that each member acts on their own behalf in relation to their membership and not on behalf of any public authority, company or other body; they do not act on behalf of companies owned by the wider public sector in relation to their membership of RGOU. Appellant’s Reply to further written submissions of the Commissioner and RGOU

44. On 5 September 2025, the Appellant filed written submissions by way of reply, together with a number of exhibits to support his submissions. He submits, in summary: a. The Appellant agrees that RGOU, as a company limited by guarantee, is capable of legal ownership under s6 FOIA. RGOU’s members, the 24 Universities, are its legal owners. b. In relation to the 22 non-Scottish universities, the Appellant does not accept that those universities are distinct from their governing bodies: “ A university is, in practice, indistinguishable from its governing body and any differentiation is not based in reality. If a distinction is drawn between the governing body of a university and the university itself, this could lead to a situation whereby universities would be entitled to refuse disclosure of any document (save for those directly drafted by their governing body or those related to the administrative operation of the body itself). ” c. While the Appellant accepts that the Universities of Edinburgh and Glasgow are not identified in Schedule 1 to FOIA, they nevertheless comprise the wider public sector for the following reasons: i. The Scottish government has designated them as public authorities. ii. They must align, like all public sector bodies, with Scottish public procurement strategies e.g. they are covered by the Procurement Reform (Scotland) Act 2014 and the Public Contracts (Scotland) Regulations 2015. d. The Universities of Edinburgh and Glasgow are “wholly embedded within the ownership of the public sector”. The corollary is that RGOU is owned by the wider public sector and covered by FOIA. e. The wider public sector is the ultimate beneficial owner of all the members of RGOU. They all act with the specific purpose of meeting needs in the general interest. f. In relation to SLC: RGOU’s submission that SLC views itself as wholly owned by the Crown (meaning the devolved government administrations of each of Scotland, Wales and Northern Ireland), is a bold assumption, especially when the Scotland Act 1998 devolved the functions of Ministers of the Crown to Scottish Ministers who are not part of the Crown. g. It is not the case that SLC self-identifies as susceptible to FOIA: the Commissioner has issued Decision Notices which deal with SLC as a public authority under FOIA, which provides legal certainty about SLC’s status in relation to FOIA. The Legal Framework

45. Section 1 FOIA provides a right of access to recorded information held by public authorities. It provides: General right of access to information held by public authorities. (1) 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.

46. Section 3 FOIA provides as follows: Public authorities. (1) In this Act “public authority” means— (a) subject to section 4(4), 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 . (2) 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.

47. We have already set out at paragraph 13 above the full text of s6 FOIA.

48. Schedule 1 to FOIA identifies those public authorities which are subject to FOIA, either by name or category. Relevant for current purposes, Part IV, headed “Maintained schools and other educational institutions (England and Wales)”, identifies at paragraph 53(1) the following as public authorities: The governing body of— (a) an institution within the further education sector, (aa) a registered higher education provider of a description prescribed by regulations made by the Secretary of State for the purposes of section 39(1) of the Higher Education and Research Act 2017 , (b) a university receiving financial support under section 65 of the Further and Higher Education Act 1992 , (c) an institution in Wales conducted by a higher education corporation, (d) a designated institution for the purposes of Part II of the Further and Higher Education Act 1992 as defined by section 72(3) of that Act , or (e) any college, school, hall or other institution of a registered higher education provider which falls within paragraph (aa) or a university which falls within paragraph (b).

49. Paragraph 53(2) provides: In sub-paragraph (1)— (a) “governing body” is to be interpreted in accordance with sub section (1 ) of section 90 of the Further and Higher Education Act 1992 but without regard to sub section (2 ) of that section, (aa) “registered higher education provider” has the meaning given by section 3(10) of the Higher Education and Research Act 2017 , (b) in paragraph (a), the reference to an institution within the further education sector is to be construed in accordance with section 91(3) of the Further and Higher Education Act 1992 , (c) in paragraph (c)— (i) the reference to an institution in Wales is to an institution whose activities are carried on, or principally carried on, in Wales, but includes the Open University, and (ii) “higher education corporation” has the meaning given by section 90(1) of the Further and Higher Education Act 1992 , and (d) in paragraph (e) “college” includes any institution in the nature of a college.

50. In relation to the meaning of “governing body”, s90(1) of the Further and Higher Education Act 1992 provides: “governing body”, in relation to an institution, means, subject to sub section (2 ) below— (a) in the case of an institution conducted by a further education corporation, a sixth form college corporation or a higher education corporation, the corporation, (b) in the case of a university not falling within paragraph (a) above, the executive governing body which has responsibility for the management and administration of its revenue and property and the conduct of its affairs, (c) in the case of any other institution not falling within paragraph (a) or (b) above for which there is an instrument of government providing for the constitution of a governing body, the governing body so provided for, and (d) in any other case, any board of governors of the institution or any persons responsible for the management of the institution, whether or not formally constituted as a governing body or board of governors.

51. Sub- section 2 referred to in the definition of a ”governing body” in s90(1) of the Further and Higher Education Act 1992 provides: The Secretary of State may by order provide for any reference in the Education Acts to the governing body of an institution, in relation to an institution which is— (a) a designated institution for the purposes of Part I or Part II of this Act , and (b) conducted by a company, to be read as a reference to the governing body provided for in the instrument of government, or to the company or to both.

52. Paragraph 55 of Schedule 1 to FOIA provides: (1) The governing body of— (a) a university receiving financial support under Article 30 of the Education and Libraries (Northern Ireland) Order 1993, (b) a college of education . . . or in respect of which grants are paid under Article 66(2) or (3) of the Education and Libraries (Northern Ireland) Order 1986, or (c) an institution of further education within the meaning of the Further Education (Northern Ireland) Order 1997. (2) In sub-paragraph (1) “governing body” has the meaning given by Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993.

53. Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993 provides that “governing body”, in relation to an institution means, in the case of a university, the executive governing body which has responsibility for the management and administration of its revenue and property and the conduct of its affairs.

54. S58 FOIA provides as follows: Determination of appeals. (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.

55. In summary, the Tribunal’s remit for this appeal is to determine whether the Decision is in accordance with the law. The Tribunal is empowered to undertake a full merits review of the Decision. Analysis

56. We read: a bundle of 300 pages which included witness statements from Mr Purcell and Mr Brake; the further written submissions we have described above; the Appellant’s skeleton argument; a bundle of exhibits filed by the Appellant; RGOU’s skeleton argument; and a further witness statement from Mr Purcell. The Appellant referred to the Protection of Freedoms Act 2012 , and the Tribunal located that legislation and the associated Explanatory Notes to which we refer below. The Decision

57. Even though we understand that all parties agree that the Decision is a decision susceptible to appeal pursuant to s57 FOIA, we address this issue at the outset of our analysis for completeness.

58. The Decision was issued in the form of a letter confirming that RGOU is not a public authority.

59. The Upper Tribunal has determined that the Commissioner has jurisdiction both to investigate and decide whether a body is a public authority (Fish Legal v Information Commissioner and others [2015] UKUT 52 (AAC) (“Fish Legal”)): “In summary, the Commissioner has jurisdiction both to investigate and decide whether a body is a public authority. That decision is one made on the application under section 50 of FOIA and so the document giving notice of that decision is a decision notice served under section 50(3)(b). Sections 50 and 51 are predicated upon the existence of the three key concepts of request, information and public authority on which the legislation is based. But that does not deprive the First-tier Tribunal of jurisdiction to deal with those issues. As Mr Barrett put it at the hearing, section 50(1) merely describes the matters that may be the subject of an application under that section and so a complaint about the way the specific request has been dealt with; it does not prescribe conditions that must be met before an application can be made and determined by the Commissioner. When that section and section 51 refer to an application, they refer to a complaint to the Commissioner that any requirement of the legislation has not been met and the Commissioner can address all the reasons advanced as to why this has not occurred, including the assertion that FOIA does not apply because the request was not made to a public authority.” [55]

60. Fish Legal concerned a decision under the Environmental Information Regulations 2004 but the principle established is of equal application to FOIA. S6 FOIA

61. For the reasons which follow, we determine that RGOU is not a public authority within the meaning of s6 FOIA, including, specifically, s6(2) (b)(i) or (ii) FOIA.

62. We take s6(2) (a) and (c) FOIA shortly, and then address s6(2) (b) FOIA, which lies at the heart of this appeal. S6(2) (a) FOIA

63. RGOU is not wholly owned by the Crown. This is not in dispute. RGOU does not therefore satisfy the requirement of s6(2) (a) FOIA. S6(2) (c) FOIA

64. RGOU is not wholly owned by the Crown and the wider public sector. This is not in dispute. The Appellant does not contend for any part ownership of RGOU by the Crown. RGOU does not therefore satisfy the requirement of s6(2) (c) FOIA. S6(2) (b) FOIA

65. RGOU is not wholly owned by the wider public sector. This is because it does not satisfy any requirement of s6(2) (b)(i) or (ii) FOIA.

66. RGOU is owned by its members. This is not in dispute. We observe for completeness that the fact that those members’ liability is limited by guarantee rather than by share, for the purposes of company law, is irrelevant to the members’ status as RGOU’s owners. Liability for the purposes of company law is not determinative of ownership in the context of FOIA or otherwise.

67. None of the members of RGOU, that is to say, the owners of RGOU, is a “relevant public authority” or a “company wholly owned by the wider public sector” ( s6(2) (b)(i) FOIA). S6(2) (b)(i) FOIA - a relevant public authority

68. Dealing with the first limb of s6(2) (b)(i) - “a relevant public authority”: none of the members of RGOU is a relevant public authority because they are not identified in Schedule 1 to FOIA.

69. In our view, it is irrelevant that the governing bodies of 22 of the members of RGOU are listed in Schedule 1 to FOIA.

70. The Request is made of RGOU as an entity, not of its individual university members. Even were it permissible to elide RGOU and its members, as the Appellant contends we should, that disregards the fact that the members, as university institutions, are not listed in Schedule 1 to FOIA. Only their governing bodies are listed. We do not accept in this context that the institutions and their governing bodies are one and the same entity.

71. To contend otherwise is analogous to contending that a company is one and the same as its board of directors, that is to say, that they are one and the same legal entity. That is plainly wrong. Control of a company is divided between the directors and the shareholders, the former by the executive function of the board owing a fiduciary duty to the company, and the latter in general meeting. Shareholders do not hold information on behalf of the company. Directors may hold information on behalf of the company, but the information is still that of the company.

72. In that regard, we note that paragraph 53(2) of Schedule 1 to FOIA provides that “governing body” is to be interpreted in accordance with s90(1) of the Further and Higher Education Act 1992 (but without regard to sub- section 2 of that section which is of no current relevance). None of the interpretations provided in s90(1) of the 1992 Act indicate that an institution’s governing body is to be regarded as one and the same as the institution itself. For example, s90(1) (b) provides that for a university which is not an institution conducted by a further education corporation, the governing body means the executive governing body which has responsibility for the management and administration of the university’s revenue and property and the conduct of its affairs. That legislation clearly recognises a distinction between the university and the body which runs it.

73. Even if we were to accept, which we do not, that a university's governing body and the university itself are one and the same, only 22 of RGOU’s 24 members are listed in Schedule 1 to FOIA. The Universities of Glasgow and Edinburgh are not listed. Nor are their governing bodies. Where s6 (2A)(b)(iii) FOIA requires that every member be a person falling within s6(2) (b)(i) or (ii) FOIA, the fact that the governing bodies of the Universities of Glasgow and Edinburgh are not listed in Schedule 1 to FOIA, that is to say, they are not a relevant public authority within the meaning of s6(3) FOIA, would mean that not every member satisfies the condition, and so the requirement of the first limb of s6(2) (b)(i) FOIA is not met.

74. The fact that those universities may be subject to certain Scottish legislation, such as procurement legislation, and in that context may be subject to public law, is irrelevant to the issue of their legal status and ownership under FOIA. It does not make them a public authority. S6(2) (b)(ii) FOIA - a company wholly owned by the wider public sector

75. Dealing with the second, alternative limb of s6(2) (b)(ii) FOIA - “a company wholly owned by the wider public sector”: none of the members is a company wholly owned by the wider public sector. The Appellant has not demonstrated otherwise.

76. Rather, each is an educational institution, a corporate body in the sense that they are not an individual person. None of the facts that some or all of them may receive their funding, in whole or in part, from the public sector, that certain of their deliveries may be undertaken in concert with public sector bodies, that they may be regulated by public bodies, and that certain of their operations may be in the public interest, is sufficient to indicate that any of them is owned by the wider public sector. Those matters are not effective to determine their legal identity or their ownership for the purposes of s6 FOIA. S6(2) (b)(ii) FOIA

77. None of the members of RGOU acts on behalf of a relevant public authority or of a company wholly owned by the wider public sector. We accept Mr Purcell’s evidence that each member acts on its own behalf. The Appellant has not demonstrated otherwise. Freedom of Protections Act 2012

78. Parliament has not seen fit to prescribe the universities themselves in Schedule 1 to FOIA. We fully take on board the Appellant’s submission that the Freedom of Protections Act 2012 was intended to strengthen public access to information and that, to that end, we should take a purposive approach in construing reference to the governing body of a university as being reference to the university itself.

79. We note, however, that Mr Brake’s evidence in support of the Appellant’s position only goes so far as to say that it was the Committee’s intention to modify the definition of a publicly owned company for the purposes of FOIA to include “companies entirely owned by two or more public authorities.”

80. We have also considered the Explanatory Notes to s103 of the Protection of Freedoms Act 2012 , which amended s6 FOIA in its current form. They provide: Section 103 : Meaning of “publicly-owned company”

405. This section amends section 6 of the FOIA to widen the definition of “publicly-owned company”.

406. Sub section (2 ) amends section 6(1) of the FOIA to provide that, as well as companies wholly owned by the Crown, any government department or a single public authority, those wholly owned by one or more bodies from the wider public sector or owned by any such body or bodies in conjunction with the Crown or government departments are also subject to the FOIA. Currently section 6(1) of the FOIA only applies to bodies wholly owned by the Crown, any government department or another single public authority.

407. Sub section (3 ) replaces the current section 6(2) of the FOIA to define when a company is owned by the Crown, the wider public sector, or a combination of both. For a company to be wholly owned by the Crown every member must be a Minister of the Crown, a government department or a company owned by the Crown; or a person acting on behalf of any of these. For a company to be wholly owned by the wider public sector every member must be a relevant public authority or company wholly owned by the wider public sector; or a person acting on behalf of either. For a company to be wholly owned by the Crown and wider public sector at least one member must be a Minister of the Crown, a government department, a company wholly owned by the Crown, or a person acting on behalf of one of these; at least one member must be a relevant public authority, a company wholly owned by the wider public sector, or a person acting on behalf of one of these; and all of its members must fall within these two categories. This has the effect that companies wholly owned by the Crown (including government departments) or any combination of public authorities listed in Schedule 1 to the FOIA (subject to subsection (4)) are subject to its provisions, as are companies owned by the Crown and any combination of relevant public authorities. Examples of bodies to which the FOIA will be extended include waste disposal companies and purchasing organisations wholly owned by a number of local authorities.

408. Subsection (4) amends section 6(3) of the FOIA to define “relevant public authority”. All public authorities listed in Schedule 1 to the FOIA are relevant public authorities except those listed only in relation to particular information. Companies owned entirely or in part by public authorities listed only in relation to particular information are not publicly-owned companies for FOIA purposes. Government departments are excluded from the definition of a relevant public authority on account of their being part of the Crown.

81. Explanatory Notes are no substitute for legislation. Even to the extent they may be prayed in aid of interpretation, we find nothing in them which supports any of the interpretation of s6 FOIA for which the Appellant contends. They indicate an intention to widen the scope of s6 FOIA to encompass an entity subject to joint rather than single ownership by the types of entity listed. That accords with Mr Brake’s evidence. Paragraph 408 expressly states that the meaning of a “relevant public authority” is that set out in s6(3) FOIA. In our view, the meaning of a relevant public authority is clear: it is an entity listed, by name or precise type, in Schedule 1 to FOIA.

82. We note also Mr Brake’s evidence that RGOU is a company wholly owned “(and funded)” by publicly funded Universities. There is no evidence before us that the Universities are wholly publicly funded, and our understanding is that many of them will have recourse to their own funds as well as public funds. In any event, as we have already observed, we do not consider that source of funds is determinative of legal identity or ownership for the purposes of s6 FOIA.

83. Dealing with two final submissions from the parties: first, we do not consider that any distinction between FOIA and FOISA is relevant to or determinative of the status of RGOU in the context of s6 FOIA. We do not address it further.

84. Second, we do not consider the position of SLC to be relevant to the issue we must determine concerning RGOU. RGOU’s speculation as to why it appears that SLC considers itself to be bound by FOIA may or may not be correct but that is outwith the bounds of this appeal. We are concerned only with the status of RGOU as Respondent to this appeal. None of the Commissioner’s decisions relating to SLC are binding on us in our determination of RGOU’s status. Conclusion

85. The Commissioner was correct to decide that RGOU is not a public authority within the meaning of FOIA. On that basis, RGOU was entitled to refuse to respond to the Request. The Decision is in accordance with the law.

51. The Appeal must be Dismissed.