The Information Commissioner has determined that Hertfordshire County Council should disclose information about its pension scheme’s private equity investments in accordance with its Freedom of Information Act 2000 obligations.
The Information Commissioner decided that the information should be disclosed on the basis that the public interest in knowing that public funds are being invested wisely overrides the public interest in protecting confidentiality.
This is an important decision for authorities which administer the Local Government Pension Scheme (LGPS) funds. They will need to carefully consider how they will respond to any future information requests.
This briefing note considers the Information Commissioner’s decision.
What are the obligations on public authorities under the Act?
The Act provides individuals or organisations with the right to access information held by public authorities. Information is either provided on request or published through the public authority’s publication scheme. Any information can be requested, not just information produced since the Act came into force. When information is requested, the public authority must tell the applicant whether or not it holds the information. If it does, the public authority must disclose the information in the manner requested within 20 working days.
Authorities are also required to have in place a publication scheme which is a commitment to make certain classes of information available without the requirement to make a request under the Act. The scheme must also set how the information may be obtained. The publication scheme must be approved by the Information Commissioner and also be reviewed periodically.
Does the public authority have to disclose all information?
No. The Act exempts certain categories of information from disclosure. Exemptions may be “qualified” or “absolute”. Where an absolute exemption applies, the applicant is not entitled to disclosure of the information, and in most cases to be informed whether or not the information is held by the authority. Where a qualified exemption applies, the authority will only be entitled to withhold the information in all the circumstances of the case, the public interest in upholding the exemption outweighs the public interest in disclosing the information.
Can an applicant appeal against a refusal to disclose?
Yes. The applicant should complain about the refusal to disclose using the public authority’s internal disputes procedure, if there is one. Where the applicant is still unhappy after exhausting the authority’s internal process, he or she can complain to the Information Commissioner. It will investigate and decide whether or not the information requested needs to be disclosed. Decisions of the Information Commissioner may be appealed to the Information Tribunal.
Hertfordshire County Council administers a section of the LGPS. It uses public money to meet its employer contributions to the scheme. These contributions together with member contributions are invested in order to provide the benefits.
The council contracted with various investment specialists in relation to the investment of the LGPS funds. These contracts contained a confidentiality clause.
The complainant asked the council for the following information concerning the council’s investments in relation to the LGPS:
- A complete list of all private equity, venture capital and real estate funds (including funds of funds).
- Certain specific information about the funds including a note of the cumulative contributions to date and the cumulative distributions received to date.
The council provided a complete list of the funds invested in but refused to disclose the other information on the grounds of confidentiality. Eventually the complainant took the case to the Information Commissioner.
The confidentiality exemption
Information does not have to be disclosed where it was provided to the public authority in confidence. In order to rely on the exemption the public authority needs to satisfy the following:
- The information must have been obtained by the public authority from another person.
- Disclosure of the information would give rise to an actionable breach of confidence.
Under the Act, the confidentiality exemption is an absolute exemption. However, there are three circumstances in which disclosure of confidential information will not constitute an actionable breach of confidence, as there is a defence at common law.
- Where the disclosure is consented to by the confider.
- Where the disclosure is required by law.
- Where there is a public interest in disclosing the information.
What did the Information Commissioner have to consider?
In this case the Information Commissioner had to consider whether the information requested should be disclosed in the public interest. It assessed whether the clear public interest in the general public being able to scrutinise the council’s investment strategies outweighs the public interest arguments that disclosure should not be allowed because it would prejudice the commercial interests of the parties involved.
The Information Commissioner decided that disclosure of the information would not be an actionable breach of confidence by the council. In particular, disclosure would contribute to ensuring the effective oversight of public funds being invested by the council, and therefore be in the public interest. The Information Commissioner confirmed it was unlikely that disclosure would be detrimental to the relationship the council had with the investment managers. The investment managers would be aware that the council would be subject to greater levels of scrutiny than private companies.
Disclosure of the information was ordered.
Not all public authorities disclose information in the same way. Certain public authorities may be more willing to disclose specific pieces of information than others. It may be that other administering authorities have been willing to disclose the investment information sought in this instance. However, it may be more realistic to assume that public authorities would prefer not to disclose investment details. It is worth noting that while the Information Commissioner is not bound by previous decisions, the Hertfordshire case is not the first decision to overturn an authority’s refusal to disclose such information.
Although the confidentiality exemption appears on the face of it to be an absolute exemption, it is only available where there is no overriding public interest which would require disclosure, as this would act as a legitimate defence to the breach of confidence claim. Public authorities need to make sure that any information about the LGPS which they are looking to withhold is truly confidential in nature or otherwise protected by the Data Protection Act.
While the public interest is a defence to a claim for breach of confidence, it will not be a defence for breach of contract. Where the public authority enters into a contract, for example with an investment manager, which has a confidentiality clause, it should ensure that it contains adequate carve-outs for the authority so that a requirement to disclose information in accordance with the Act does not inadvertently cause a breach of contract.
In addition, both parties should also be aware that contractual obligations to keep information confidential often casts a wider net than the law of confidence would ordinarily allow. The parties should ensure that the clause is as focused as possible with regard to what information is to be classified as confidential. The more focused the clause the more likely that a confidentiality argument would succeed before the Information Commissioner.
Moreover, the only information which may be protected by the confidentiality exemption is the information moving from the private company to the public authority. This means that the contract itself as well as the information (if any) developed by both parties will not necessarily be protected. The information which is provided by the public authority will not be protected.
Public authorities could, however, take another route towards reducing the burden of answering these types of requests. Under the Act, authorities are required to review the information they make available to the public through the publication scheme. Providing information in this way would help authorities with pensions governance initiatives.
Since April 2006 administering authorities have been under a requirement to prepare and publish policy statements providing details of their governance arrangements. The latest draft LGPS Scheme Administration Regulations seek to maintain and expand on these requirements. The Regulations will require administering authorities to prepare a “pension fund annual report” setting out the investment policy for each of the authority’s funds, an explanation of its investment policy and a summary of the investment performance of those funds during the year.
In this context it seems inevitable that in future the pressure on administering authorities to release information in respect of their investments and governance procedures will only increase. However, this should be regarded as an opportunity rather than a threat. Transparency and the free flow of information will require administering authorities to maintain and improve on their existing strong governance and investment procedures resulting in a better LGPS for members. Demonstrating that such robust procedures are in place will also help to combat the existing scepticism of the LGPS that exists in some quarters.