Interaction with Section 49 Audit Commission Act

Audit Work

Auditors are appointed by the Audit Commission under Section 3 of the Audit Commission Act 1998 (ACA) and operate under their own statutory powers, separate from those of the Audit Commission. Unlike the Audit Commission, appointed auditors are not 'public authorities' for the purposes of the Freedom of Information Act 2000 (FOIA). This means that the information they hold is not subject to that Act.

The disclosure of audit information is instead governed by section 49 of the Audit Commission Act 1998.

Section 49 - what information does it apply to?

Section 49 applies to information that either an appointed auditor or the Commission has obtained in the course of undertaking an audit, inspection or study.

Section 49 covers both the appointed auditor and Commission themselves, but also any other body or person who may hold such information. This may include, for example, other Inspectorates with whom the Commission has shared information that it has gathered in the course of undertaking an inspection. It may also include individuals who have received audit information in the course of interviews that an auditor may have conducted in order to determine an objection.

How does section 49 work?

Section 49 provides that information which relates to a particular body or person and has been obtained by an auditor or the Commission in the course of an audit, inspection or study may not be disclosed unless certain circumstances apply. These are set out below.

First, an auditor, the Commission, or anyone else who holds this information may disclose it if one of a number of specified 'gateways' are satisfied. These are where the disclosure is:

• With the consent of the body or person to whom the information relates;
• For the purposes of the Commission's or appointed auditor's statutory functions;
• To the CSCI for the purposes of certain of its statutory functions;
• To the National Assembly for Wales for the purposes of certain of its statutory functions;
• In the case of a health service body, for the purposes of certain statutory functions of the Secretary of State and the Comptroller and Auditor general;
• To the Chief Inspector of Education, Children's Services and Skills for the purposes of certain of its functions;
• For the purposes of the Secretary of State relating to social security;
• for the purposes of any function of the Auditor General for Wales;
• To the Mayor of London, where the information relates to the GLA or a functional body;
• For the purposes of an ethical standards officer or the Public Services Ombudsman for Wales;
• For the purposes of a monitoring officer for certain of his/her functions;
• For the purposes of any criminal proceedings;
• For the purposes of any criminal investigation which is being, or may be, carried out;
• For the purposes of any criminal proceedings which have been, or may be, initiated,
• For the purposes of initiating, or bringing to an end, criminal investigations or proceedings;
• For the purpose of determining whether criminal investigations or proceedings should be initiated or brought to an end.

Secondly, in the absence of one of these gateways being satisfied:

• An appointed auditor or a 'public authority', may disclose information in any other circumstances where they are satisfied that this will not harm their ability to undertake their statutory functions. The Commission is a 'public authority', as is any other body who is subject to the Freedom of Information Act 2000 ('the FoIA'). This includes, for example, our audited and inspected bodies and the other Inspectorates with whom we work. Read the Information Commissioner's Guidance on prejudice (PDF, external link).
• Anyone else may disclose information where they have the consent of an appointed auditor or the Commission. Section 49ZA sets out the statutory requirements for seeking consent, and for determining whether or not to provide it (see below)

How does section 49ZA work?

Section 49ZA applies to persons who are not public authorities or auditors - in other words, any other individual who holds audit, inspection or study information and wishes to disclose it.

Section 49ZA sets out the requirements for making a request for consent. First, it must be in writing, state the name of the applicant and an address for correspondence, describe the information for which consent is sought, and identify the person to whom the information will be disclosed.

The Commission or the auditor is obliged to give consent to a request to disclose, except where this would, or would be likely to, harm their ability to do their work. Written reasons for refusal must be given within 20 days.

Section 49 and Freedom of Information

If the Commission receives an FoIA request for audit, inspection or study information, this will fall within the scope of section 49. This means that the Commission will need to consider whether one of the conditions for disclosure (outlined above) applies, so that the information may be disclosed in compliance with the requirements of section 49. There are three possible outcomes:

• If the Commission finds that one of the specific gateways has been met, then the requirements of section 49 will be satisfied. The Commission's decision as to disclosure will then depend on whether or not the FoIA itself provides other grounds on which the information might be withheld. To take an example, if a body consents to the disclosure of information that relates to it, this will meet the requirements of section 49 without the Commission needing to further consider whether disclosure would harm its ability to do its work. The decision as to disclosure will then depend on whether the FoIA provides an exemption against disclosure. An example may be section 33 of the FoIA, which applies to bodies that have audit or inspection functions, and enables them to withhold information where disclosure would harm its ability to perform its functions.
• If the Commission finds that one of the specific gateways has not been met, but that disclosure would not harm its ability to do its work, the information should be disclosed.
• If the Commission finds that none of the conditions under section 49 are satisfied - i.e. no specific gateway applies and the disclosure of the information would be harmful to its ability to do its work - the Commission will not have to disclose the information. This is because section 44 of the FoIA provides an absolute exemption against disclosure when it is prohibited by another statute (in this case, section 49 of the Audit Commission Act 1998). Unlike many of the exemptions under the FoIA (for example, section 33), section 44 does not require the Commission to apply the 'public interest' test before relying on the exemption.