Contractors “should be subject to Information Act”

Private contractors providing services to the public on behalf of public authorities should be made subject to the Freedom of Information Act in their own right, according to the Campaign for Freedom of Information.

The private bodies which should be brought under the Act include those providing treatment or diagnosis to NHS patients, private care home owners acting under contract to local authorities, contractors running schools for local education authorities or operating prisons or prisoner escort services. Private train, bus and tram operating companies and contractors responsible for the running of London underground lines should also be covered by the Act, the Campaign says.

The Campaign’s director, Maurice Frankel, said: “These services were previously provided by public authorities directly and would otherwise have come under the Freedom of Information Act when it came into force in 2005. Contracting-out has led to a reduction in the public’s rights to information, which should be restored.”

The same principle should also apply to voluntary organisations providing services under contracts with public authorities, says the Campaign. Bodies representing the voluntary sector have recently argued that the Act should not extend to them. But the Campaign points out that public funding for the voluntary sector has risen from £5 billion annually in 1997 to £10 billion in 2007, much of it to enable the voluntary sector to take over the provision of services from public authorities. The Campaign points out that some of the large voluntary bodies receive more public funds than conventional public authorities.

The Campaign is also calling for private bodies with public functions to be brought under the Act. These should include academy schools, housing associations, new deal communities partnerships and local strategic partnerships. Other candidates should include BAA which runs Heathrow and other airports, NATS (the body responsible for air traffic control), Network Rail, port authorities, self regulatory bodies like the Press Complaints Commission, the Advertising Standards Association and the Solicitors Regulation Authority and standard setting bodies like the British Standards Institute.

The Campaign’s comments are made in response to a Ministry of Justice consultation about the possible extension of the FOI Act. Section 5 of the FOI Act permits contractors which provide services to the public on behalf of a public authority to be made subject to the Act in relation to those services. Bodies with public functions can also be brought under the Act.

At present, FOI requests about contracts can be made to the public authorities responsible for them – but they may not always have the detailed information needed to answer. The consultation paper suggests that an alternative to bringing contractors under the FOI Act in their own right might be for authorities to insert new clauses into the contracts. These could require a contractor to provide information to the authority, so that it could reply to FOI requests about the contract. The Campaign says this option would be difficult to enforce. Only the courts, not the Information Commissioner, could enforce such a contractual requirement and few requesters could afford the costs of going to court. In any case, requesters would probably not have the right to enforce compliance with a contract to which they themselves were not a party.

The Campaign is calling on the government to introduce a series of orders under the Act, progressively extending its scope to contractors and bodies with public functions.

The Campaign’s response to the consultation paper can be found at: www.cfoi.org.uk/pdf/CFOI_s5response.pdf

The consultation paper itself is at: www.justice.gov.uk/publications/cp2707.htm

Further information

Maurice Frankel or Katherine Gundersen 020 7490 3958

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