A Bill to close a loophole in the Freedom of Information Act that allows contractors providing public services to escape scrutiny is due have its second reading debate on Friday 17 October.
Contractors are not subject to the Freedom of Information (FOI) Act in their own right. Only information which the contractor is considered to hold on behalf of the authority is accessible. This varies depending on the terms of each contract and often excludes significant information.
A Private Member’s Bill introduced by Liberal Democrat MP John Hemming would ensure that all information held by a contractor about a public service contract is subject to the FOI Act, regardless of what the contract itself says. The Act’s exemptions would protect any genuinely sensitive information.
The Transparency and Accountability Bill’s provisions on FOI have been drafted by the Campaign for Freedom of Information. The bill also deals with several other matters .
Examples of contractor-held information which the Information Commissioner has ruled is not available under the FOI Act include:
• the numbers of parking tickets issued, then cancelled on appeal, by traffic wardens employed by a council contractor and offered Argos points as incentives to issue tickets;
• how often a contractor-managed council swimming pool had been needlessly closed to the public because it had been booked by schools which did not use their slots;
• arrangements made by a subcontractor to restore the Leyton Marsh after its use as a temporary basketball court during the Olympics;
• the qualifications of assessors used to verify that incapacity benefit claims have been properly dealt with by the DWP’s contractor, Atos;
• the cost of providing Sky television to prisoners, and the number of cells with their own telephones, at HM Prison Dovegate, a privately managed prison.
John Hemming MP said: “Public services are increasingly being provided by contractors instead of public authorities – but the FOI Act hasn’t kept up with this change. The public’s right to information about their services should be the same regardless of who provides them.”
The Campaign for FOI’s director Maurice Frankel said: “each new outsourcing contract reduces the public’s access to information because of a loophole in the FOI Act. Information that is vital to the public may be kept secret simply because the contract doesn’t provide for access. The bill would restore the public’s right to know.”
The Campaign pointed out that the influential Public Accounts Committee in the House of Commons has repeatedly called for the FOI Act to be strengthened in this way. In a 2011 report the PAC recommended that “Freedom of information should be extended to private companies providing public services” . In 2012 it said “where private companies provide public services funded by the taxpayer, those areas of their business which are publicly funded should be subject to the Freedom of Information Act provision” .
Notes In addition to the provisions on contractors and FOI Mr Hemming’s bill also contains provisions about: children involved in court proceedings; the transparency of courts and case conferences; reporting on the number of prisoners who have exceeded their tariff and have not been released because they do not admit guilt; extending the Criminal Cases Review Commission’s powers to obtain information; and dealing with consumer complaints in markets for public services.  ‘Lessons from PFI and Other Projects’, 44th report of session 2010-12, HC 1201, 18 July 2011. ‘Department for Work and Pensions: the Introduction of the Work Programme’, 85th report of session 2010-12, HC 1814, 15 May 2012.
Maurice Frankel or Katherine Gundersen 020 7490 3958