The Freedom of Information (Extension) Bill was due to have its second reading on June 15 2018. The Bill, which was drafted with the assistance of the Campaign for Freedom of Information, was unfortunately not reached. A prolonged debate on the preceding bill consumed all the available Parliamentary time.
This is the speech that Andy Slaughter MP the bill’s promoter would have given had time permitted.
The Freedom of Information Act is one of the great successes of the last Labour government. It is used by individuals, campaign groups, journalists – and often by members of this House – to obtain information that government and public authorities have been unwilling to disclose. To cite a topical example, thanks to the FOI Act we know that despite the enormous shortage of doctors in the NHS, the government refused more than 2,300 visa applications from overseas doctors seeking to work in the NHS between last November and this April.
The Justice Committee, which carried out post legislative scrutiny of the FOI Act, described it in its 2012 report as a ‘significant enhancement of our democracy’.
The Supreme Court has attested to the Act’s value. In a 2012 judgement Lord Mance said the Act ‘reflects the value to be attached to transparency and openness in the workings of public authorities in modern society’. Lord Phillips said in the same case that the law ‘adds to parliamentary scrutiny a further and more direct route to a measure of public accountability’. (Sugar v BBC,  UKSC 4)
The Independent Commission on Freedom of Information, chaired by Lord Burns was set up by the previous Conservative government to – it was widely believed – pave the way to new FOI restrictions. Happily it ended up recommending the opposite. Its 2016 report found that FOI had ‘enhanced openness and transparency’ and called for the right of access to be strengthened, not restricted.
One of the Commission’s recommendations for strengthening the Act was to address the problem of obtaining information from contractors. This is an issue addressed by my Freedom of Information (Extension) Bill.
An enormous range of public services are now delivered by private companies or charities under contracts with public authorities. These range from the running of prisons and immigration removal centres to the provision of meals on wheels, social care visits and parking services. The Committee on Standards in Public Life estimated that in 2017 over £251 billion, a third of all government spending, went on the purchase of public services. Some of the main recipients of this spending have become household names, some better known than certain government departments: Serco, G4S, Capita and the recently demised Carillion.
Unfortunately, these contractors are significantly less accountable to the public under FOI than the authorities who previously delivered the services directly.
Here the story becomes a little complicated. The FOI Act applies not only to information held by a public authority but also to information held by someone else on an authority’s behalf. When is information held on an authority’s behalf? The test which the Information Commissioner, and on appeal the Information Rights Tribunal, apply is whether the contract empowers the public authority to demand that information from the contractor.
If it does, that information is considered held on the authority’s behalf and is available via an FOI request to the authority.
If it does not the information is considered to be held for the contractor’s own purposes and is not subject to FOI.
Information which has been refused under FOI because the contract gave the authority no right to it includes:
- a report on fire safety defects in the CT scanner room of hospital which the NHS trust leased under a PFI contract. The contract did not give the trust the right to such information from the PFI body. When an FOI request was made, the trust itself could not obtain it – so nor could the requester.
- information about the number of complaints made against court security staff and the number of those staff with criminal convictions. The staff were provided by G4S but the MOJ’s contract with G4S did not entitle it to such information.
- the number of prison staff at HMP Birmingham and the number of attacks at the prison. Again, this was held only by G4S and the MOJ’s contract did not cover it.
- 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 was held by Capita and not known even to the BBC.
For some time the Kensington and Chelsea Tenant Management Organisation, which managed Grenfell tower, refused FOI requests on the grounds that it was not itself a public authority. The Information Commissioner upheld such a refusal in 2012, apparently without even considering the possibility that the Organisation held information on the council’s behalf. The KCTMO latterly accepted that it held information on behalf of the Royal Borough of Kensington and Chelsea and began to reply to requests. But in July 2017, after the fire, it refused another request again on the grounds that it was not subject to the Act. This was a 2005 consultant’s report documenting the failure by the KCTMO and one of its contractors to maintain the Grenfell tower emergency lighting system. The extraordinary risk of allowing such information to be withheld from the public is obvious.
My bill would remove the uncertainty that led to this thoroughly unsatisfactory and dangerous situation.
It is common to find contracts containing some impressive sounding clause such as “The contractor undertakes to assist the authority in complying with its obligations under the Freedom of Information Act”. That sounds fine, until you realise that the authority’s obligations are to deal with FOI requests for information which the contractor holds on its behalf. What information is held on the contractor’s behalf? Such clauses take us no further in establishing that.
The answer is to introduce an umbrella clause into contracts saying that all information relating to the performance, or planned performance, of the contract is held on the authority’s behalf for FOI purposes. All such information will then be accessible under the FOI Act or under the EIR via a request to the authority.
That is precisely what clause 2 of my bill does. It inserts a new section 3A into the FOI Act stipulating that all contracts entered into by public authorities for the provision of services are deemed to include such a disclosure clause. The clause would also apply to the contractor’s sub-contracts. It would cover existing as well as future contracts.
The result will be that all information about the planned or actual performance of the contract will be subject to the FOI Act or, in the case of environmental information, to the parallel Environmental Information Regulations.
This does not mean that all such information will automatically be released. Disclosure will depend on whether exemptions apply, for example, for information whose disclosure would be harmful to the contractor’s or the authority’s commercial interests or be a breach of confidence.
I stress that the bill is not intended to guarantee disclosure of contractors’ information. Its aim is to ensure that that the FOI process applies, so that information is disclosed unless there is good reason not to.
The advantage of this approach is that it does not require contractors, particularly small bodies with few staff, to spend time learning how to deal with FOI requests. Under the bill, the request would be answered by the public authority.
The FOI Act itself contains a separate, but so far never used, mechanism for bringing contractors directly under its scope. Under section 5(1)(b) contractors can be designated as ‘public authorities’ in their own right for FOI purposes and required to deal directly with requests. The procedure can only be used where the contract is for a service which it is the authority’s function to provide – which is not the case for all contracts The Scottish government has brought contractors who run prisons and their subcontractors under the Scottish FOI Act via this mechanism. I regret that this hasn’t done been done under the UK Act too.
There is substantial support for action to deal with contractors. In 2012 the Public Accounts Committee 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”.
In February this year, the Information Commissioner, Elizabeth Denham, said “policy interventions are required to address the emerging transparency gap on public service delivery, and these may need to include formal FOIA designation of some outsourced providers and amendment to the definition of ‘information held’ in the Freedom of Information Act”.
Last month the Committee on Standards in Public Life urged the government to consult on the extension of the FOI Act to cover information held by public service contractors.
Finally, the Burns Commission, to which I previously referred, recommended, in relation to larger contractors, that “information concerning the performance or delivery of public services under contract should be treated as being held on behalf of the contracting public authority. This would make such information available to requestors who make requests to the contracting public authority.”
This is an impressive consensus. The government could act on it today – by supporting this bill.
The second element of the bill brings a number of additional bodies under the FOI Act.
Housing associations are not covered by FOI, although many of them have inherited local authority housing stock. In some cases the tenants, and the public generally, have lost FOI rights that they previously enjoyed when these were under council control.
The Grenfell fire has highlighted what I would say is the irresistible need for a right of access if only on safety grounds. Yet when Inside Housing asked 61 housing associations for copies of their fire risk assessments in 2017 only 7 provided them.
- A housing association tenant who asked for information about the cause of a fire in his premises in 2009 received no answer.
- A tenant received no answer to his question asking if the water supply to his premises was provided through potentially toxic lead pipes.
- A tenant was refused a copy of the electricity bill which led him to be charged £1,200 to cover the costs of 6 communal light bulbs
- Another unsuccessfully asked for the make and model of street lighting on an estate which he found ‘overpowering’ at night. He wanted the information to contact the manufacturer to see if they could suggest a remedy. It was refused.
- A request for 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 was refused.
In 2011 the coalition government announced that it would consult housing associations on bringing them under FOI. Regrettably, it failed to consult or act. My bill provides that opportunity.
Electoral registration officers and returning officers
Electoral registration officers and returning officer are supported administratively by local authorities, but are legally distinct entities, not covered by the Act. Their functions are vital to our system of democracy.
In 2014 the Political and Constitutional Reform Committee called for electoral registration officers and returning officers to be made subject to FOI.
In response the government said: “The Government agrees that there is a case for bringing EROs and ROs under the FOIA. There is insufficient time remaining in this Parliament to complete the required steps (including formal consultation with EROs and ROs), so this will necessarily be an issue for the next Government.”
The bill would bring those bodies under FOI.
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.
Information about the handling of individual cases will be exempt from FOI because of the sensitive personal information involved. But information about policy decisions could be made available. The public would have important information on the issues they deal with including child abuse, domestic violence, female genital mutilation and the protection of children from extremism.
The Housing Ombudsman
The bill’s long title says it would also bring the Housing Ombudsman under the FOI Act. In fact, since the long title was announced, the Housing Ombudsman has been brought under FOI so this aspect of the bill is redundant.
The Information Commissioner’s powers
The bill extends the Information Commissioner’s powers, so that she has the same power to obtain information from contractors holding information on behalf of an authority as she does in relation to the authority itself. These include the power to:
- Issue an Information Notice under section 51 of the Act, requiring a contractor to provide information required for an ICO investigation
- Search a contractor’s premises in the same way as an authority’s premises
- Prosecute an authority which deliberately destroys requested information to prevent its disclosure commits for an offence under section 77 of the FOI Act. The same offence would apply to a contractor holding information on the authority’s behalf.
- Finally, proceedings for this offence must be taken within 6 months of the offence occurring. The slow pace of answering requests and investigating complaints makes this difficult to achieve. The bill would extend this to 6 months of the offence coming to the prosecutor’s attention, subject to a 3 year maximum. The government recently adopted this approach in relation to the offence of deliberately destroying information requested under the Data Protection Act. The Bill adopts this approach for the FOI offence.
The FOI Act needs other important improvements, particularly to deal with the long delays that sometimes occur. This bill cannot do everything, but it is an important and long overdue start and I hope the House will support it.