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Comments on draft transparency clause for government contracts

The Campaign has commented on proposals for a draft transparency clause produced by the Crown Commercial Service, a Cabinet Office agency. The clause is intended to be included in an updated version of the Model Services Contract which is designed for use by government departments when procuring services. The Government is committed in the Open Government Partnership National Action Plan 2013-2015 (see commitment 12) to introduce such standard transparency clauses into government contracts and to draw them up in consultation with civil society organisations and business.

Campaign for Freedom of Information – Comments on Draft Transparency Clause

13 July 2015

A. FREEDOM OF INFORMATION PROVISIONS

Information subject to FOI disclosure

We welcome clause 22.6, which brings all information relevant to the provision of the contracted Service within the scope of an FOI request to the authority.

However, clause 22.7(c) which describes the supplier’s obligation to provide information to the authority is defective.

Clause 22.7(c) requires a supplier to provide to the authority on request a copy of “all information belonging to the Authority” which is the subject of an FOI/EIR request. But the FOI and EIR rights of access are not limited to information “belonging” to the authority. They apply to information held by or on behalf of the authority. [1]

Information held on an authority’s behalf is not limited to that which belongs to the authority. The term applies to information which is to any extent used for the authority’s purposes.[2] Information which a contract entitles the authority to see is normally considered to be held for the authority’s purposes.

By limiting the supplier’s duty to provide information to the authority to information “belonging” to the authority, clause 22.7 undermines the authority’s ability to obtain information which it may be legally required to disclose to a requester. It also conflicts with clause 22.6, which requires the supplier to provide to the authority any information relevant to the provision of the services.

Clause 22.7(c) should be amended to remove the reference to “belonging to the Authority” and to replace it instead by a reference to any requested information relevant to or arising from the provision of the service.

Prohibition on answering requests

Clause 22.7(d) prohibits a supplier from responding directly to an information request ‘unless authorised in writing to do so by the Authority’.

However, some suppliers may be public authorities in their own right and therefore required to answer FOI/EIR requests, including those relating to services which they provide under contract to another authority.

For example:

  • Some NHS services are performed under contract by other NHS bodies, as a result of the competition for contracts between NHS and private providers promoted by the recent NHS reforms. Such public authority providers cannot be relieved of their FOI/EIR obligations by a provision such as clause 22.7(d). The clause may however lead authorities acting as contractors to believe they cannot respond to FOI requests, resulting in unjustified refusals, followed by unnecessary complaints to the Information Commissioner and long delays in complying with the legislation.
  • Under regulation 2(2)(d) of the Environmental Information Regulations some private contractors are public authorities in their own right and required to answer EIR requests arising from the contract. This applies to any body ‘under the control’ of a public authority which ‘provides public services relating to the environment’. A contract would bring a provider ‘under the control’ of the authority for these purposes. The Information Commissioner has ruled that an environmental waste disposal provider operating under contract to a public authority is itself a public authority and obliged to comply with the EIR.[3]

Clause 22.7(d) should make clear that it does not purport to set aside the duty of contractors which are public authorities to comply with FOI/EIR requests about their contracts.

 B. TRANSPARENCY PROVISIONS

Disclosing evidence of criminal offences

Clause 21.3(c) permits a disclosure of Confidential Information to be made to the Serious Fraud Office where the Recipient of the information reasonably believes that the other party is involved in a criminal offence under the Bribery Act. It appears that such disclosures would otherwise be prohibited by clause 21.2(b).

Bribery is not a uniquely harmful offence. Other offences committed for financial gain (eg failure to comply with expensive health & safety regulatory requirements) or through negligence or for ideological reasons (terrorism and espionage) may be even more serious.

The provision should be extended to allow the disclosure to the police or a statutory regulator of information tending to show that any criminal offence has been or is being committed.

Withholding information on public interest grounds

Clause 22.4 permits any ‘Transparency Information’ to be withheld where the authority believes publication would be ‘contrary to the public interest’, regardless of whether an FOI/EIR exemption is involved. This would permit information to be withheld by the authority for any reason however inadequate (eg the avoidance of embarrassment). The provision should be brought into line with the approach in clause 22.1(b)(i) and only permit information to be withheld where an exemption is engaged and disclosure would be contrary to the public interest.

Explanation for withholding information

Clause 22.4 provides that where the authority withholds information from a Transparency Report it will provide ‘a clear explanation to the Supplier’. Transparency reports are not provided for the supplier’s benefit, but for the public’s. There should be an obligation to provide the public with an explanation for withholding such information.

Publishing information in context

Clause 22.5 permits the Authority to publish the Transparency Information:

“in a format that assists the general public in understanding the relevance and completeness of the information being published to ensure the public obtain a fair view on how the Agreement is being performed, having regard to the context of the wider commercial relationship with the Supplier”.

The intended operation of this provision is not at all clear. The ‘format’ in which information will be published will be determined by the Agreement and set out in table shown in Annex 1 to the transparency clause. It is not apparent why an authority, on receiving the report, should need to publish it in some other non-agreed format.

The provision may encourage authorities to believe that it permits them to withhold or modify information which they think does not “assist” the public’s understanding or provide a “fair” view of performance. This would open the door to misrepresentation of the supplier’s information.

The clause should make clear that the authority is not free to withhold information for such reasons. If the information needs to be put into context, this should be done by providing additional explanation. This would be in line with the Information Commissioner’s guidance on responding to FOI requests, which states:

“You cannot refuse a request for information simply because you know the information is out of date, incomplete or inaccurate. To avoid misleading the requester, you should normally be able to explain to them the nature of the information, or provide extra information to help put the information into context.”[4]

Publication of Information obtained from the Supplier

Clause 22.6 states that an authority may not publish the supplier’s Confidential Information. However, clause 21.6(c) permits an authority to disclose (and presumably publish) Confidential Information where the authority deems it necessary or appropriate in the course of its public functions. The relationship between the two provisions should be clarified by expressly stating that nothing in clause 22.6 prejudices the authority’s freedom to disclose information under clause 21.6.

Public Record Office

Paragraph 3.1(a) of Schedule 8.4 refers to the ‘Public Record Office’, which no longer exists. The reference should to ‘The National Archives’.

Notes

[1] Section 3(2) of the FOIA states: “For the purposes of this Act, information is held by a public authority if—

(a) it is held by the authority, otherwise than on behalf of another person, or (b) it is held by another person on behalf of the authority.” A similar provision is found in regulation 3(2)(b) of the EIR.

[2] According to the Information Commissioner’s guidance “Information is held by a public authority if it holds it to any extent for its own purposes. Information is also held by a public authority, in terms of FOIA, if the contractor or another party holds it on behalf of the authority.” ICO, “Outsourcing and freedom of information – guidance document”, Version. 1.0

[3] “the Commissioner…is of the opinion that the company, South Downs Waste Services Ltd, can be said to be under the control of Brighton & Hove City Council and East Sussex County Council by virtue of the integrated waste management contract it entered into with the two Councils…The Commissioner is of the opinion that South Downs Waste Services Ltd provides public services relating to the environment, namely its waste management and recycling services and as such fulfils part (iii) of regulation 2(2)(d) of EIR. Therefore, the Commissioner finds that South Downs Waste Services Ltd constitutes a public authority for the purposes of EIR. From hereon in South Downs Waste Services Ltd shall be referred to as “the public authority”. Information Commissioner’s Office, DN FS50114241, 18 March 2008.

[4] https://ico.org.uk/for-organisations/guide-to-freedom-of-information/receiving-a-request/

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