Out-Law / Your Daily Need-To-Know

Watchdog wants public sector contractors subject to FOI laws

Out-Law News | 01 Feb 2019 | 4:20 pm | 2 min. read

Freedom of information (FOI) laws should be updated to account for the risks to transparency and accountability in the performance of public services where they are outsourced to businesses, the UK's information commissioner has said.

In a new report submitted to the UK parliament (177-page / 2.15MB PDF) Elizabeth Denham called on the UK government to make changes to, and make greater use of powers already contained within, existing 'access to information' legislation. She also advocated a broad review into "proactive disclosure provisions regarding contracting".

Denham said: "In the modern age, public services are delivered in many ways by many organisations. Yet not all of these organisations are subject to access to information laws. Maintaining accountable and transparent services is a challenge because the current regime does not always extend beyond public authorities and, when it does, it is complicated. The laws are no longer fit for purpose."

"Urgent action is required because progress has been too slow. It is now time to act. This report sets out solutions that can extend the law to make it fit for the modern age. I am committed to working with government and parliament to achieve this report’s vision of more accountable public services, regardless of how they are delivered," she said.

In her report, Denham called on the government to update the FOI Act and the Environmental Information Regulations (EIR) "to give a clearer legislative steer about what information regarding a public sector contract is held for the purposes of the legislation".

The EIR are similar to the UK's FOI laws but apply specifically to environmental information. They implement an EU directive on public access to environmental information in the UK. Under the EIR, public authorities are required to proactively make certain information available, and to provide information on request from a member of the public within set time limits, unless a specific exemption applies.

Denham also urged the government to make use of existing powers it has under the FOI Act to designate contractors as subject to the legislation in respect of public functions they undertake "where this would be in the public interest, whether because of the scale, duration or public importance of the contracts".

She said the government should use those powers of designation "more frequently and efficiently" in respect of "other organisations exercising functions of a public nature".

"Designation orders … would give the public the right to make requests directly to these organisations and require them to proactively disclose information in line with a publication scheme," Denham's report said.

She also said the government should consider reforming the EIR to "allow organisations exercising functions of a public nature, including contractors, to be designated" as subject to the regime.

The information commissioner further recommended that the government "conduct a comprehensive review of all proactive disclosure provisions regarding contracting, and which affect the public sector", including parts of the FOI Act that require public sector organisations' to maintain publication schemes and they the requirements are monitored and enforced.

Information law expert Michele Voznick of Pinsent Masons, the law firm behind Out-Law.com, said: "The report highlights a number of issues regarding access to information about performance of core public services, not all of which relate to information being beyond the scope of the current legislation."

"Broadening the scope of FOIA and EIR is one possible solution. Any extension of the scope to include ‘contractors’ will need to be carefully thought through and should have appropriate input from a range of stakeholders to ensure there is adequate accountability for carrying out ‘core public services’ by the private sector which will not damage the commercial confidentiality of those businesses carrying out private sector services, as well as some core public services," she said.

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