Freedom of Information
Commission fees paid to artists by public sector organisations in the UK must be disclosed to anyone requesting such information, according to a recent decision made by the Information Tribunal operating under the provisions of the UK’s Freedom of Information Act 2000. This decision could have important consequences for future public art commissions in the UK.
The case was started by a press agency, John Connor Press Associates Limited, which in January 2005 wrote to the National Maritime Museum at Greenwich in South London requesting copies of ‘all documentation and correspondence relating to any payments made to Conrad Shawcross for the Continuum exhibition’. Continuum was part of a contemporary art programme curated at and by the museum from December 2004 to February 2005, which included new work commissioned by the museum from the artist Conrad Shawcross. The press agency made a formal request under the provisions of the Freedom of Information Act 2000, which provides that ‘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’. The National Maritime Museum is a public authority within the meaning of the Act.
The museum wrote to the press agency a fortnight later, enclosing copies of the commission contract, the artist’s invoices, budget statements, and related email correspondence. However, certain financial information had been deleted from the copy documents which, the museum wrote, had been withheld because the public disclosure of such details ‘would be likely to prejudice the commercial interests of both NMM and Conrad Shawcross and that it would not be in the public interest to release the information’ at that time. The Act permits a public authority to withhold information if such a disclosure ‘would, or would be likely to, prejudice the commercial interest of any person (including the public authority holding it)’. The museum’s position was that, when commissioning artists in future, its bargaining position would be prejudiced by public disclosure of such financial information; as would the artist’s position in negotiations of future sale prices of similar work.
The press agency formally applied to the Information Commissioner, a judicial office established under the Act, to rule that the museum was wrong to withhold the information requested, and to order its disclosure. The Information Commissioner ruled in favour of the museum. The press agency appealed to a higher judicial authority, the Information Tribunal, which handed down its decision – in favour of the press agency – on 25 January 2006.
The appeal Tribunal’s decision was based on the particular facts of the case, and it could therefore be argued that it only applies to the parties concerned and to their precise circumstances; but it could equally be argued that the reasoning of the appeal Tribunal, together with its authoritative judicial status, has the effect of creating a legal precedent that would make most if not all public authorities readily comply with the same or similar requests in the future. Past and potential future public authority commissioners and artists should consider both the facts and the appeal Tribunal’s reasoning in this case.
The museum withheld financial information relating to five matters: the museum’s expenditure on costs of producing commissioned work; the financial value of such work; estimated expenditure on exhibiting such work; and sponsorship monies. However, the museum did disclose a significant amount of other information relating to certain matters: the museum’s financial contribution to the costs of materials for production and exhibition of commissioned work; the amount of grants received from two funding bodies; the artist’s retention of copyright ownership; provisions for the refunding of financial contributions if the work was sold during the three years following the end of the exhibition; and the museum’s responsibility for damage to work in transit and during the exhibition.
The appeal Tribunal’s key function was to review the original decision and most importantly why the Information Commissioner had found in favour of the museum: he had concluded that, at the time the information request was made by the press agency, the museum was involved in active commission negotiations with another artist for the museum’s on-going contemporary art programme; and that the premature release of the financial information sought ‘would be likely to prejudice the NMM’s bargaining position in respect of these active negotiations for a similar project’. The Commissioner had been strongly influenced by the publicly funded nature of the museum’s work, and of its duty to achieve best value for the use of public money -although he did recognise that the likely prejudice to the museum would diminish in due course (at which point the need for public disclosure would outweigh the likely prejudice to the museum). Significantly, the Commissioner decided that the likely prejudice to the artist from public disclosure would not have been a valid reason for non-disclosure (but this part of the original decision was not the subject of the appeal).
The appeal Tribunal overturned the Commissioner’s decision for three principal reasons. First, the information actually disclosed to the press agency by the museum would have been commercially valuable to any other artist with whom it was negotiating a commission; second, the disclosure of the costs of materials ‘reduces very materially the value of the financial information that was withheld’; third, the work of the second artist (with whom the museum was in other negotiations at the time of the public disclosure request) was markedly different from the work of the Conrad Shawcross, the artist in question. It was therefore decided that ‘no sufficient risk of prejudice to the commercial interests of the NMM was demonstrated to justify’ its withholding of the financial information requested.
The Act’s requirement for public disclosure of information is restricted to ‘public authorities’, which are extensively defined and specified in the legislation, and include: any government department; The House of Commons, House of Lords, the Wales and Northern Ireland Assemblies (there are separate arrangements for Scotland), the armed forces (except the special forces and GCHQ); local government authorities in England and Wales and district councils in Northern Ireland; the NHS; primary, secondary, further and higher education authorities; police services; plus a whole host of named public bodies and offices including the Arts Councils of England and Wales and Northern Ireland, the British Council, and the BBC (but not in relation to public disclosure of information relating to art, literature or journalism).
Since this decision was handed down, it has been used on several recent occasions by the media, the press in particular, to acquire financial information about the expenditure of public money on art works, and to publish it – often in the context of journalistic questioning of the nature of art, public art in particular, the costs to the public, and the judgements of commissioning public authorities. It is important that artists and their commissioners, public authorities or otherwise, are not deterred by this case from continuing to pursue good and sensible practices of recording their commission contracts in writing and keeping hard copies.
© Henry Lydiate 2006