On 17th November, MPs debated John Hemming’s Transparency and Accountability Bill, which contains measures drafted by the Campaign to strengthen the public’s right to know about public services which have been contracted out.
Contractors providing services for public authorities are not directly subject to the Freedom of Information Act. However, any information which they hold on behalf of the authority is treated as if it were held by the authority itself (FOI Act s3(2)(b)) and can be requested from the authority. Information is usually considered to be held on the authority’s behalf only if the contractor is required by the contract to hold it or provide it to the authority on request: any other information is regarded as held for the contractor’s own purposes and is outside the Act’s scope. The public’s rights thus depend on the precise terms of each contract, which vary from contract to contract and may exclude information essential for accountability. For a list of contractor-held information which the Information Commissioner (IC) has ruled is not available under FOI see the Campaign’s press release on the Bill.
Clause 16 of the Transparency and Accountability Bill would amend the FOI Act to automatically bring all information held by a contractor about the performance of a contract within its scope. All such information, including that held by a sub-contractor, would be deemed to be held on the authority’s behalf and be accessible via a FOI request to the authority unless it was exempt.
Clause 17 of the Bill would extend the IC’s existing powers to obtain information from public authorities to contractors, subcontractors or other people holding information on the authority’s behalf. Thus the IC’s power to serve an Information Notice or apply to a court for a search warrant could be used in relation to an obstructive contractor. Contractors which deliberately destroy or alter a record containing requested information in order to prevent its disclosure would commit the same offence under s77 of the Act as a public authority.
The measures were welcomed by Labour’s shadow justice minister Stephen Twigg:
one of the most significant legal changes pursued by the previous Labour Government was the passage of the Freedom of Information Act, and measures that strengthen FOI legislation are very welcome. In our 2015 manifesto, we have committed ourselves to extending freedom of information to cover the delivery of public services by private companies. If taxpayers’ money is being spent, I see no reason why the same standards should not apply, whether the service is delivered publicly or under contract by the private or voluntary sectors. That is a very important principle of openness and transparency.
However, despite a commitment in the coalition agreement to extend the scope of the FOI Act, government support was not forthcoming. Justice minister, Simon Hughes, merely repeated the government’s intention to introduce a revised code of good practice under section 45 of the Act:
The code will ensure that all those in the private sector who are contracted to do work for the public sector, involving central or local government, must, by contract, observe the same standards of openness that they would observe if they were in the public sector. That does not mean that the same law applies to them, because they are private sector organisations. If that does not work, we shall need to come back to it, but I hope everyone accepts that it is a move in the right direction.
Further details of the proposed code were provided during a Lords debate on the Criminal Justice and Courts Bill on 20 October. Lord Faulks, the justice minister, said:
the code will not only encourage the use and enforcement of contractual provisions to ensure that current FoI obligations about information held on a contracting authority’s behalf are met but will promote the voluntary provision of other information where this would help to provide a more meaningful response to requests. The success of this approach will, as was also made clear in Committee, be monitored by both the Government and the Information Commissioner. If it does not achieve sufficient transparency, we will consider what other steps, including the possible formal extension of FoI to contractors, are required. Once the code of practice is issued, it is important that we give it the opportunity to prove its worth before deciding whether further measures are necessary.
The problem with this approach is that it relies on the words “encourage” and “voluntary”. The FOI Act was meant to to replace voluntary disclosure with a legal right of access – so replacing a legal right with voluntary disclosure is a highly retrograde step. Should an authority choose to ignore the new code, all the Commissioner can do is issue a non-binding “practice recommendation”. If a contractor refuses to disclose voluntarily, even this option won’t be available.
Relying on every authority to insert an appropriate clause into every contract one at a time is unlikely to be as effective as the systematic approach proposed by the Campaign. Contractual disclosure provisions can only be enforced by the authority, not by the requester. Authorities are unlikely to take legal action against a contractor because of the expense of going to law. The Information Commissioner has no jurisdiction over contractors at all at present. Mr Hemming’s amendment would solve these problems at a stroke.