Chapter 14: Scope of the Acts

Agencies subject to the Acts

The agencies subject to the Official Information Act (OIA) are:755

(a)a department;

(b)a Minister of the Crown in his or her official capacity; and

(c)an organisation.

A “department” is a government department named in Part 1 of Schedule 1 of the Ombudsmen Act 1975 (other than the Parliamentary Counsel Office).756 An “organisation” is an organisation named in Part 2 (but not Part 3) of Schedule 1 of the Ombudsmen Act (other than the Parliamentary Service or Mortality Review Committees) and also an organisation named in Schedule 1 of the OIA itself.757 As far as the LGOIMA is concerned, the first schedule of that Act lists the local authorities subject to it. They are divided into two categories, classes of local authority and particular named local authorities.

Determining whether an agency is subject to the Acts is therefore not a simple question. In respect of the OIA, three schedules of two Acts need to be considered. Even then, a reader might be forced to go to yet another Act for a definitive answer. For instance a person unfamiliar with the legislation would have some difficulty finding whether universities are subject to the OIA. They are, but only via an entry titled “Institutions established under Part 14 of the Education Act 1989” in Part 2 of Schedule 1 of the Ombudsmen Act.

There is even more complexity when determining whether a Crown entity is subject to the Act. Some, like the Law Commission, are explicitly listed in Schedule 1 of the OIA. The remainder are covered by virtue of the reference in Part 2 of Schedule 1 of the Ombudsmen Act to “Crown entities within the meaning of section 7 of the Crown Entities Act 2004 (other than the Independent Police Conduct Authority)”. Section 7 of the Crown Entities Act then refers readers to that Act’s schedules, the Companies Act 1993 and the Education Act 1989.

The LGOIMA suffers from another problem: an important category of agency does not appear in the schedule to that Act at all. Council controlled organisations (CCOs) are made subject to Parts 1 to 6 of LGOIMA by section 74 of the Local Government Act 2002, but are not listed in the schedules of the LGOIMA. The schedules thus do not give the full picture.

In our view, this situation is not very satisfactory. The Acts are intended to be used by members of the public. They should be able to be understood by the people who wish to use them, and it should be easier than it currently is to find out which agencies are subject to them.

We recommend that the schedules to the OIA and LGOIMA should be as comprehensive as possible, and identify all agencies that they cover. At the very least, the OIA should reproduce the list of agencies that appear in the schedule to the Ombudsmen Act, and should also list the Crown entities which presently do not appear by name. The optimal approach would be for the schedules to list all individual agencies, although that is probably an unattainable ideal: some categorisation of agencies is probably still going to be necessary. For example, more than one submitter noted that CCOs frequently change, with one submitter describing them as a “moving feast”. This might make it impracticable to list individual CCOs. Similarly, it would likely be more trouble than it is worth for school boards of trustees to be individually listed. A pragmatic approach is appropriate but always with the need in mind to make the lists as accessible as possible to those who use them.

Another submitter suggested that it should be a requirement for agencies that are subject to the OIA or LGOIMA to include a statement to that effect on their website and in other information they distribute about their agency. We agree that an agency should identify on its website that it is subject to the OIA or LGOIMA. In chapter 12, we recommend that the Directory of Official Information published by the Ministry of Justice be replaced with a requirement that each agency publish on its website the information that would otherwise have been included in that publication. By implication, the inclusion of this information on a website will indicate that an agency is subject to the OIA, but we think it would be desirable for agencies to be explicit in this respect.

Submitters rightly noted that it would be important for the schedules to remain up to date in light of the establishment, abolition or name changes of agencies. In order to ensure that occurs, we recommend that the oversight office we discuss in chapter 13 have a statutory responsibility to maintain the schedules. This would include taking an active role to ensure that application of the OIA or LGOIMA is considered when new bodies are established. The oversight office should also be required to maintain and make publicly available a list of the agencies that are subject to the OIA.

Both the OIA and LGOIMA include provisions that enable their schedules to be updated via an Order in Council when an organisation is abolished or its name is changed.758 Section 32 of the Ombudsmen Act 1975 also enables an Order in Council to be used when a new department of state is created. On most occasions changes to the machinery of government will require legislative change and the appropriate changes to the schedules can and should be made at the same time. However, for situations where legislation is not required, or where the application of the OIA is not considered at the time, we consider that the Order in Council process should also be available.

R116The schedules to the OIA and LGOIMA should be comprehensive and identify all agencies covered by the OIA and LGOIMA respectively.

R117Wherever practicable, the schedules should list individual agencies rather than categories of agencies.

R118There should be a statutory responsibility on all agencies subject to the OIA and LGOIMA to state that fact on their website.

R119There should be a statutory responsibility on the oversight office to:

(a)maintain the schedules to the OIA and LGOIMA; and

(b)maintain and make publicly available a list of the agencies that are subject to the OIA and LGOIMA.

R120A new provision in the OIA and LGOIMA should state that the Acts’ schedules may be updated by Order in Council when an agency is established or abolished, or its name is changed.

OIA, s 2(1) definition of “official information”.

Section 2(1) definition of “department”.

Section 2(1) definition of “organisation”.

OIA, s 49; LGOIMA, s 56.