Bring housing associations and public service contractors under FOI

The Campaign for Freedom of Information has drafted a bill which would bring both housing associations and private contractors providing public services under the Freedom of Information Act.

Housing associations

Housing associations are not subject to the FOI Act and can refuse to answer requests about fire risks, safety problems, eviction policies, waiting lists and other matters.

Examples of requests for information which housing authorities have refused include:

  • the cause of a fire in a housing association flat, requested by a neighbouring tenant [1]
  • whether potentially toxic lead pipes were used for the water supply to a property [2]
  • the amount of flytipped waste and litter collected from a housing association’s estates [3]
  • the number of repossession orders served since the ‘bedroom tax’ came into force, and the number of those tenants who had no arrears before that date [4]
  • the policy which permitted an association to pack up an evicted tenant’s possessions and confidential documents instead of allowing him to collect them [5]
  • the number of properties adapted for disabled persons (the requester said she wanted: ‘just the number, nothing else’) [6]
  • the number of asylum seekers housed [7]
  • the number of properties empty for more than 6 weeks [8]
  • the electricity bill which led a tenant to be charged £1,200 to cover the costs of 6 communal light bulbs [9]
  • the make and model of street lighting on an estate which the requester found ‘overpowering’ at night. He wanted to use the information to contact the manufacturer to see if they could suggest a remedy [10]
  • details of a contract for emptying septic tanks shared by a housing association and privately owned properties. The requester, a private owner, wanted to know the basis on which he was being charged [11]
  • the numbers of complaints about repairs [12]
  • the circumstances in which tenants have been given permission to sublet and action taken against those subletting without permission [13]
  • the policy on dealing with requests for an individual’s own personal information under the Data Protection Act and the relevant application form [14]
  • the job description of the housing association’s Head of Governance [15]

Such information is routinely disclosed by local authorities in response to FOI requests. Most of the above requests were made through the website and referred to the FOI Act. This prompted many housing associations to point out that the Act did not apply to them. This would not have prevented them releasing information voluntarily and the fact that they didn’t do so is revealing. Typical comments included: “We do not wish to reply to your enquiry as we are not subject to the FOIA legislation” (Midland Heart); “As Wirral Partnership Homes LTD does not fall under the Freedom of Information Act we are not obligated to respond to your enquiry”; “Great Places Housing Group is not a public body under the terms of the Freedom of Information Act and is not under any obligation to respond to requests made under this legislation”; “Our client is not subject to the Freedom of Information Act and is therefore not obliged to answer a request made under that Act” (solicitor for Genesis Housing Group to a person who had been evicted).

In theory housing associations may be obliged to answer requests for environmental information under the Environmental Information Regulations (EIR). This might provide a right to information about fire safety decisions, such as those that led to Grenfell Tower disaster. But while the Information Commissioner’s Office (ICO) has ruled that housing associations in Northern Ireland are subject to the EIR but has made no such rulings in relation to English and Welsh housing associations, where the legal context is slightly different. In a number of cases it has dealt with informally it has concluded that the particular English housing associations concerned were not subject to the EIR. This uncertainty means that bringing housing associations under the FOI Act is the only way of ensuring that their decisions on fire safety and other critical issues are subject to scrutiny.

The coalition government promised to consult about extending FOI to housing associations in 2011 but did not do so. The Scottish Government is currently consulting on bringing housing associations under the Scottish FOI Act.

Public service contractors

The bill would also allow the public to see information held by contractors about public services they provide including social care, health, public transport, parking enforcement, school inspections and privately run prisons.

Information held by a contractor is only available under FOI where the contract entitles the public authority concerned to obtain that information from the contractor. Where the contract does not, the information is not accessible under FOI. Examples of contractor-held information refused under FOI include:

  • The number of complaints from the public against court security officers provided by G4S and the number of officers charged with offences.
  • the number of prison staff at HMP Birmingham and the number of attacks at the prison. Also held only by G4S.
  • information about rehabilitation projects at HMP Bronzefield, near Ashfield in Surrey, run by Sodexo.
  • the value of penalty fares issued on the London Overground and Docklands Light Railway by private sector inspectors.
  • the costs of bringing TV licensing prosecutions, which is held by Capita and not known to the BBC.
  • whistleblowing policies applying to Virgin Care staff providing NHS services.
  • the number of employees providing outsourced services for Brent Council employed on ‘zero hours’ contracts
  • the numbers of parking tickets issued, then cancelled on appeal, by Islington traffic wardens offered Argos points as incentives to issue tickets by NCP Ltd.

The bill would require contractors to supply authorities with information to answer FOI requests regardless of what the contract says. Public authorities would then be able and required to answer FOI requests made to them for information about their contracted out services as well as those which they provide directly.

Local Safeguarding Children Boards

These multi-agency bodies co-ordinate and develop policies for child protection in every local authority area but are not subject to FOI. They include representatives of social services, the police, the NHS, education bodies and others, but FOI requests to those bodies for information about a safeguarding board’s work are refused. The information is said to be held purely on behalf of the board itself and not used for the authority’s own purposes. Bringing safeguarding boards under FOI would allow more access to information about their work to deal with child abuse, domestic violence, female genital mutilation and the protection of children from extremism.

A draft of the Freedom of Information (Contractors Etc) Bill can be found here.

[1] Request made in July 2009 to Paddington Churches Housing Association, now part of Genesis Housing Group.

[2] Request in October 2012 to Genesis Housing Group

[3] Request in December 2016 to Great Places Housing Group

[4] Request in January 2014 to Yorkshire Housing

[5] Request in August 2012 to Genesis Housing Group.

[6] Request in March 2016 to Thirteen Group

[7] Request in September 2015 to Halton Housing Trust

[8] Request in September 2016 to Wirral Partnership Homes Ltd

[9] Request in May 2013 to Affinity Sutton

[10] Request in April 2014 to Peabody Trust

[11] Request in March 2017 to Amicus Horizon

[12] Request in October 2011 to Midland Heart

[13] Request in February 2015 to Place for People Group Ltd

[14] Request in May 2017 to Great Places Housing Group

[15] Request in 2011 to Peabody Trust. Job descriptions are regularly published when a job is advertised and not regarded as the post-holder’s personal information under the Data Protection Act.

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