Should FOI be extended to private companies that carry out public services?

On 21 September 2017, the UK Information Commissioner, Elizabeth Denham, and Acting Scottish Information Commissioner, Margaret Keyse  hosted the 10th International Conference of Information Commissioners ("ICIC"), consisting of  Information Commissioners and Deputy Information Commissioners from 39 jurisdictions.

The Conference passed a resolution aimed at procuring greater transparency in relation to contracted out public services and services delivered by non-public organisations.

At present the Freedom of Information Act 2000 (the "Act") only covers public authorities. However, from September 2013, the act was extended to include companies which are wholly owned by the Crown or the wider public sector or both.

Now, following the ICIC,  there may be a move to further extend the bodies covered by the Act to private sector companies providing public services under contract.

The ICIC recognised that what were previously considered "core government functions" in areas such as health care, elderly care, prisons, utilities and infrastructure, are now being carried out by private companies under public sector contracts, and as such, such entities should be open to public scrutiny.

In July this year of the Freedom of Information (Extension) Bill 2017-19 was presented to parliament, by Andy Slaughter (Labour MP for Hammersmith). The Bill seeks to make providers of social housing, local safeguarding children boards, Electoral Registration Officers, Returning Officers and the Housing Ombudsman public authorities for the purposes of FOIA, and make information held by persons contracting with public authorities subject to FOIA, and extend the powers of the Information Commissioner. The Bill is due to have its second reading debate on 15 June 2018.

The question of whether the Act should be extended to  private companies providing public services under contract was addressed by the Cabinet Office & Independent Commission of Freedom of Information, in their Report which was published in March last year. Although this issue was outside of the Commission's terms of reference, they received a significant number of responses which addressed this issue, and therefore, considered this issue but did not make any recommendations, as they did not specifically seek views on this question in their call for evidence.

The Commission was of the view that there is a need for greater transparency in outsourced public services, but were concerned that significant additional burdens should not be imposed on the public sector, and "companies (particularly small companies) should not be discouraged from bidding for public contracts."

The Commission went on the state that:

"In our view extending the Act directly to private companies who deliver outsourced public services would be burdensome and unnecessary. But we are persuaded that information concerning the performance or delivery of public services under contract should be treated as being held on behalf of the contracting public authority. This would make such information available to requestors who make requests to the contracting public authority.

Public authorities issue a large number of contracts of all kinds, and some are very low in value. We do not want to impose an unnecessary burden on either public authorities or small businesses, so we think there should be a threshold from which these obligations commence. In our view any private company which is delivering public services under contract with a value at or greater than £5m per financial year should be covered. The total of £5m should relate to either a single contract, or the cumulative value of contracts with that public authority within a single financial year."

In a world where transparency and the accountability of government is key, we may see the day when private companies need to open the doors for public scrutiny.

This note contains general guidance only on English Law as at May 2017 and does not contain legal advice. You should take legal advice on the circumstances of your own case. If we can be of assistance in that regard please let us know. Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

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