FOI rules should apply regardless of who provides public services, says Denham

Elizabeth Denham, who took up the position in the summer, said the FOI regime should apply in an outsourcing context in a speech given in London on Thursday.

"We should extend the right to know about public services so that it is independent of the service provider," Denham said. "Whether public, private or third sector organisations are delivering a service, the public’s right to know should stand unchallenged."

To demonstrate that she is "taking practical action on this challenge", Denham said she intends to lay a report on outsourcing and transparency before the UK parliament next year.

"I will place the ball – and my evidence – squarely in parliament’s court," she said.

Information law expert Kathryn Wynn of Pinsent Masons, the law firm behind Out-Law.com, said: "In Scotland, service providers can already find themselves subject to the FOI framework where public services are outsourced to them. The application of FOI rules to private sector businesses can raise issues which require careful consideration."

"One such issue is whether information should be subject to disclosure where it is held by a business carrying out public services even if the information has no bearing on the price paid for the services, or where that information requested is not even known, or of interest, to the public body outsourcing the work. An example might be where FOI rules are used to request details for the pricing model where the public sector body is paying a fixed charge for the services. However, if the elements of the pricing model would not lead to a variation in the charges paid by the public body, and, therefore, no greater dent to the public purse, where is the public interest in that information being disclosed?" Wynn said.

"The FOI regime should not be extended in a way which allows businesses to obtain sensitive information from rivals where it is information that the public body is not even entitled to receive under the contract or has no direct impact on the charges paid by that public body," she said.

In her speech, Denham said that organisations subject to FOI rules should also be placed under a new "duty to document". The measure would help address the fact that there are greater amounts of information in the digital age, and ensure the recording of that information is done "well", she said.

"Digital is both a blessing and a curse for FOI," Denham said. "New technology gives people more opportunities to access public information, clearer channels to request records and more ways to manipulate data for scholars and the public. Digital brings new voices to the FOI table.

But this richness of channel, of data and of audience is also a burden."

"In the era of digital we create ever increasing quantities of facts, figures and opinions. You could argue that we are drowning in information. But these masses of potential answers can become ever less permanent in the absence of a duty to document. A positive, legal obligation to document actions and decisions is my answer to the challenge of decisions taken by text, by instant message, by email," she said.

"If public authorities are placed under an effective duty to document regime then we are telling them to write down their decisions, to note their reasons and most importantly to write things down well. Freedom of information is only valuable if the information is created in the first place. And if it [is] properly retained. There can be no gaps and no missing pieces if the institutional memories we create are to be tangible," Denham said.