The Freedom of Information Act (FOI Act), which has its 10th anniversary on January 1 2015, has played a major part in informing the public about the state of public services, says the Campaign for Freedom of Information. The Act, which was passed in November 2000 came into force on January 1 2005. However, the Campaign says it is being undermined by the increasing use of private contractors to provide public services.
The Campaign’s director, Maurice Frankel, said: “The FOI Act has been responsible for a new generation of official data showing where standards of public services are falling short, targets are not being met, regulators are failing to keep up, policies are not having the promised effect, reckless spending is tolerated and politicians say in private what they publicly deny.”
But the Campaign said that the increasing use of private contractors to deliver public services is weakening the public’s right to know. The FOI Act does not apply directly to contractors. Information about the services they provide can sometimes be obtained from the public authority concerned. But the public can only obtain information held by a contractor if it holds it on the authority’s behalf. This usually means that the contract requires the contractor to record the specific information. If it doesn’t, the information usually falls outside the FOI Act. The Campaign says the government should close this loophole, but ministers have so far refused to do so.
Examples of significant recent FOI disclosures about public services include:
- Over 300 NHS trusts failed to comply with at least one Patient Safety Alert in 2010 – but the publicity led to substantial improvements in the following years. Alerts are issued when serious risks to patient safety are discovered: each trust is required to report when they have implemented the necessary safety precautions. An FOI request by the medical charity, Action Against Medical Accidents found there were 2,124 separate failures by trusts to show that they had taken these measures in 2010. When the request was repeated in 2011, the figure had fallen to 654, less than a third, as a result of the previous year’s publicity. By 2014, it had reduced to 141. In 2010, 80 trusts had not complied with 10 or more alerts – but only 5 trusts were in this position in 2011. The figures are a striking example of the value of the FOI Act in improving safety.
- Much of the home support provided to elderly or vulnerable people is supplied in short 15-minute visits commissioned from private providers. It is often impossible to provide the range of support people may need in this time, including help in getting out of bed, dressing, bathing, using the toilet and taking medicines. An FOI survey carried out by UNISON in 2013 found that 69% of English councils provided at least some of their care in 15 minute slots with 83% of Welsh authorities and 88% of Scottish councils doing so. Separate FOI requests by Leonard Cheshire Disability found that some English councils provided more than three quarters of their care visits in 15-minute slots. The disclosures have fuelled a campaign to abolish the practice, leading the Department of Health to issue statutory guidance under the Care Act in October 2014 stating that 15 minute visits are “not appropriate”.
- A third of hospitals are ignoring complaints about poor care made by visitors. The hospitals, responding to an FOI request by the statutory consumer body Healthwatch England, said they did not even formally record complaints made by concerned third parties. Many wrongly stated that they could only investigate such complaints with the patient’s consent – or simply did not accept them in the first place. Hospitals which did investigate these complaints said they made up 18 per cent of the total. Healthwatch said the findings were of particular concern in light of separate research showing that almost two thirds of those witnessing poor care don’t even report it because they don’t know how, find it too complicated or are scared of the consequences.
- More than a third of people with degenerative conditions such as Parkinson’s, motor neurone disease, rheumatoid arthritis and multiple sclerosis are having their benefits reduced because the Department for Work and Pensions deems they will recover enough to look for work. Thousands of those with diseases that only worsen with time are being denied full Employment Support Allowance. Instead they are assessed as suitable for work-related activity which is designed for people likely to recover to the point where they can seek employment. These include nearly 5,000 sick and disabled people, whose assessments recognised that their prospects of returning to employment were “unlikely in the longer term”. People placed in the Work-Related Activity Group receive less money and the threat of sanctions if they do not attend regular sessions with advisors. Many also have this benefit removed after a year as an added “incentive” to find employment.,
- In 2012 a small group of disabled people published a report challenging the misleading way the Department for Work and Pensions had presented the results of its consultation on replacing Disability Living Allowance. Using the FOI Act it obtained copies of the 523 consultation responses from organisations. The government had stated that ‘many’ organisations did not support the proposed increase in the qualifying period for benefit. The activists’ analysis showed that 98% of responding organisations had opposed it. The DWP had said that ‘many’ responses saw advantages to the proposed new assessment system while ‘many’ also expressed concern. In reality, 90% of organisations had opposed the proposals. Unexpectedly, the activist’s analysis – known as the ‘Spartacus report’ – went viral, and was tweeted hundreds of thousands of times in a single day. The mainstream media which had largely ignored the report began to take notice of it. The report contributed to the government losing a series of votes in the Lords (though these were later reversed). The Spartacus Network has since been responsible for several changes in government welfare policy.
- 280,000 sick patients were forced to queue for over half an hour in ambulances outside accident and emergency units before being seen in 2013/14 because of staff or bed shortages. Around 30,000 had to wait for over an hour. One patient in the West Midlands waited in an ambulance for more than 8 hours before being seen; in the South West the longest delay was over seven and a half hours and in London it was more than six hours.
- Private medical clinics treating NHS patients under contract have been paid millions of pounds a year for operations that were never carried out. Under minimum payment contracts independent sector treatments centres were paid a set amount regardless of how many operations they actually carried out. Two centres – Barlborough and Eccleshill – received £21 million more than the value of the operations they performed in the five years to April 2010. Nationwide the 25 centres are estimated to have been overpaid £260 million, or more than £50 million a year.
- 1,158 care home residents suffered dehydration-related deaths between 2003 and 2012, indicating that elderly or vulnerable patients were left without enough water at care homes. The real figures are likely to be far higher because care home residents who died while in hospital were not included.
- Taxpayers are paying millions of pounds to subsidise the provision of information to parking firms planning to prosecute drivers. The Driver and Vehicle Licensing Agency charges parking firms £2.50 a time for providing a car owner’s details, but each transaction costs the DVLA £2.84 to handle.
- More than 20 councils have used or were planning to use controversial telephone ‘lie detector tests’ to catch fraudulent benefit claimants, even though the government dropped the technique in 2010 after finding it unreliable. Swedish researchers who studied the published literature found no scientific evidence for it, describing the technique as “charlatanry”.
- Over a million children aged between 10 and 17 were arrested in England and Wales in the 4 years between 2008 and 2011 though the numbers fell by a third during the period.  By 2013 the number of arrests had fallen to just 40% of the 2008 level. The data were obtained under the FOI Act by the Howard League for Penal Reform, which is campaigning for as many children as possible to be kept out of the criminal justice system.
Notes: The Campaign has published a series of earlier reports documenting significant media stories resulting from the FOI Act. See for example:
Disclosures under the UK FOI Act, January 2014, www.cfoi.org.uk/2014/01/disclosures-under-the-uk-foi-act
500 stories from the FOI Act’s first year, www.cfoi.org.uk/2006/07/500-stories-from-the-foi-acts-first-year
1,000 FOI stories from 2006 and 2007, www.cfoi.org.uk/2008/09/1000-foi-stories-from-2006-and-2007 The Campaign was set up in 1984 and played a key part in persuading the government to introduce the FOI Act and in improving what had started out as an extremely weak bill. The Campaign monitors and seeks to strengthen the operation of the Act, helps requesters and provides training for both requesters and public authorities.
Maurice Frankel or Katherine Gundersen 020 7490 3958 For examples of contractor held information which is not available under FOI see: www.cfoi.org.uk/2014/10/mps-bill-would-strengthen-public-right-to-know-about-contractors
 Action Against Medical Accidents (i) ‘Adding Insult to Injury. NHS Failure to Implement Patient Safety Alerts’, February 2010, (ii) ‘Implementation of Patient Safety Alerts. Too Little Too Late’, February 2011, (iii) ‘Patient Safety Alerts: Implementation; Monitoring; and Regulation’, February 2014.
 Unison, Time to Care, 2013
 Leonard Cheshire Disability, ‘Ending 15 Minute Care’, 2013
 Healthwatch, ‘Those who witness poor care being denied right to complain by NHS’, 5.12.14
 The Independent, ‘Thousands with degenerative conditions classified as ‘fit to work in future’ – despite no possibility of improvement’ 23.10.14
 National Rheumatoid Arthritis Society, “Farcical Fit to Work test tells thousands of people with a progressive condition they’ll ‘recover’”, 23.10.14
 Guardian, ‘How the Spartacus welfare cuts campaign went viral’, 17.1.12
 Telegraph, ‘Patients left stranded in ambulances for 8 hours’, 9.8.14
 Telegraph, ‘Taxpayers paid £50m a year for non-existent operations’, 15.2.11
 Telegraph, ‘More than a thousand care home residents die thirsty’, 1.12.13
 The Courier (Dundee), ‘DVLA policy means taxpayers are subsidising private parking firms’ access to driver data’, 31.3.14
 Guardian, ‘Councils using controversial lie detector tests to catch benefit fraudsters’, 10.3.14
 Howard League for Penal Reform, ‘Child Arrests in England and Wales 2008-2011’, 2013.
 Howard League for Penal Reform, ‘Child Arrests in England and Wales 2013’, 2014. Social tagging: benefits of foi > contractors