Watchdog seeks greater clarity over public sector suppliers' FOI responsibilities

Out-Law News | 06 Mar 2014 | 5:26 pm | 2 min. read

The contracts agreed between public sector bodies and their suppliers should be "more explicit" about which one of the organisations holds information for the purposes of compliance with freedom of information (FOI) rules, the UK's Information Commissioner's Office (ICO) has said.

The watchdog said that it is concerned that outsourcing by a public body can lead to a loss of transparency over public affairs.

Under UK FOI laws, contained in the FOI Act (FOIA) and its equivalent in Scotland, anyone of any nationality living anywhere in the world can make a written request for information to a designated public body. Public bodies are required to disclose the information sought unless at least one of a number of exemptions prohibiting disclosure applies or unless meeting the request is too costly or difficult. Public bodies can also decide not to provide information requested if they deem the request to be vexatious.

Individuals generally have a right to be issued with a response within 20 working days, although generally public bodies are only required to disclose "the information in question held at the time when the request is received".

FOIA also applies to private sector organisations that provide services for public bodies, but the ICO said that difficulties in determining whether suppliers 'hold' information sought in an FOI request mean that information the public has a right to obtain may not be disclosed. It said standardised contractual terms between public bodies and their private sector suppliers could help clarify uncertainties over whether the suppliers are subject to the FOI regime.

The ICO backed the government's national action plan on open government partnership which proposed the use of contractual provisions between public bodies and suppliers for clearing up suppliers' responsibilities under the FOIA regime.

"We need standard contract terms that are more explicit about who ‘holds’ information in FOIA terms," Steve Wood, head of policy delivery at the ICO, said in a recent blog. "This is not the same as specifying that certain information ‘must’ be released in response to a FOIA request – each request has to be considered on its merits and exemptions may apply – but it would give clarity on where the public authority has a right of access to certain information, or whether information reverts to the authority on termination of the contract."

The ICO also called for greater consistency between the way public bodies and their suppliers work together on openness matters.

"We’ve observed inconsistency and sometimes a lack of real partnership working between the public sector commissioners with their outsourcing provider," Wood said. "Over-caution can dominate from either side. A 'transparency by design' by approach is needed, with both working closely together to agree an approach to information held, disclosure in response to requests and proactive disclosure, within the letter and the spirit of FOIA."

Earlier this year the ICO met with the CBI, the Institute for Government and a range of public sector suppliers to discuss transparency in outsourced public services (4-page / 379KB PDF).