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 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 contractors who may be considering being an admitted body for the Local Government Pension Scheme (LGPS).
This briefing note considers the Information Commionsioner’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 if, 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.
The 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 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 LGPS administrators 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 which overturned an authority’s refusal to disclose such information.
When a contractor is bidding for a PFI, PPP or other forms of outsourcing contract, one of the pension decisions to be made is whether or not the contractor is going to obtain admitted body status and participate in the LGPS or provide pension benefits for its employees through its own GAD passported broadly comparable scheme. Investment information concerning the fund would be of great use to the contractor when deciding whether or not to go down the admitted body route.
Contractors should be aware that if they are not provided with all the information they require in order to make this decision by the public authority concerned, they may have a right to request that information under the Act. Certain investment information may even be obtainable at a much earlier stage by virtue of the public authority’s publication scheme. It is also worth noting that the draft LGPS Scheme Administration Regulations will require administering authorities to prepare a pension fund annual report setting out the investment policy for each of the authority’s funds.
Every public authority should have in place a publication scheme, often referred to on their website, but otherwise accessible from the authority, which will detail the classes of information which will be made accessible, and how to obtain information.
Alternatively, if, during the bidding process it becomes apparent that the information required is not forthcoming, contractors may wish to consider making a request under the Act. Information on investment is not the only information that contractor’s may request. Private sector organisations should always bear in mind that they can request any information held by public authorities, including, for example, information about their competitors in previous transactions or decision-making criteria of the authority. Prior to the bidding stage, this information can often prove invaluable, and can boost the chances of a bid being successful.
However, this benefit comes with a word of caution - competitors are able to do the same. Private sector contractors should always bear this in mind when providing information to public authorities and consider what effect the future disclosure of that information may have, and if there are any options available to protect against disclosure - or if it would be best not to disclose it to the authority at all.