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Parliament to debate bill that would bring public service contractors, housing associations and other bodies under FOI

Information about public services provided by contractors and fire risks at housing associations would be made subject the Freedom of Information (FOI) Act under a private member’s bill introduced by Andy Slaughter the Hammersmith MP. His Freedom of Information (Extension) Bill is to be due for second reading debate in the Commons this Friday, June 15 2018.

At present, information held by contractors delivering public services is only available under FOI if the contract entitles the public authority concerned to that information from the contractor. If the contract is silent, the public has no right to it.

The bill, drafted by the Campaign for Freedom of Information, would bring all contractor-held information about the performance of the contract within the Act’s scope. It could be obtained by a request to the public authority, subject to the Act’s exemptions.

The Campaign cites the examples of:

  • a report on fire safety defects in the CT scanner room of hospital which the NHS trust used 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 for it to the trust it could not be obtained.[1]
  • the Ministry of Justice refused to provide 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 and the MOJ’s contract with it did not entitle the MOJ to such information.[2]

Andy Slaughter MP said: “A third of all public spending now goes on public services provided by private companies or charities, but too often information about them falls outside the reach of the FOI Act. It needs to keep pace with this enormous change in public service delivery.”

Maurice Frankel, director of the Campaign for Freedom of Information said: “The public pays for and depends on these services, regardless of whether they are provided by an authority’s own staff or a contractor’s. The right to know should not depend on the logo on the jackets of the staff delivering them”.

The bill would also make housing associations subject to FOI. The problems caused by the current lack of any right of access to include:

  • 54 out of 61 housing associations refused to supply their fire risk assessments to Inside Housing magazine in 2017. [3]
  • a tenant was refused information about the cause of a fire on their premises. [4]
  • a housing association refused to say whether potentially toxic lead pipes were used in the property’s water supply. [5]
  • another housing association refused to reveal the electricity bill which led a tenant to be charged £1,200 to cover the cost of 6 communal light bulbs. [6]

Other bodies that would be brought under the FOI Act by the bill include electoral registration officers, returning officers and Local Safeguarding Children Boards.

The bill would give the Information Commissioner new powers to obtain information from contractors when investigating complaints and make them subject to the offence applying to public authorities which deliberately destroy requested information to prevent its disclosure. It would also close a loophole which blocks such prosecutions unless they are brought within 6 months of the offence occurring.

Support for moves to extend FOI to contractors has been expressed by:

  • the Public Accounts Committee which said in 2012: “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”. [7]
  • The government appointed Independent Commission on Freedom of Information which reported in 2016 that: “we are persuaded 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.” [8]
  • The Information Commissioner, Elizabeth Denham, who in February 2018 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”. [9]
  • The Committee on Standards in Public Life which in May 2018 said: “The lack of reach of the Freedom of Information Act into activities of public service providers has reached a point where it is out of step with public expectations…The government should hold a public consultation on the question of expanding the Freedom of Information Act 2000 (UK) to include information held by providers where that information relates, directly or indirectly, to performance of a contract with government for the delivery of public services.” [10]

The Freedom of Information (Extension) Bill can be found here.

Explanatory Notes on the Bill can be found here.

Notes:

[1] First-tier Tribunal, decision EA/2016/0125, Sid Ryan & Information Commissioner & Wye Valley NHS Trust, 10 April 2017

[2] https://www.whatdotheyknow.com/request/designation_of_g4_security_offic

[3] Inside Housing, 28 July 2017, ‘Fire safety issues uncovered in tower blocks’

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

[5] Request in October 2012 to Genesis Housing Group

[6] Request in May 2013 to Affinity Sutton

[7] Public Accounts Committee, ‘Department for Work and Pensions: the Introduction of the Work Programme’, 85th report of session 2010-12, HC 1814, 15 May 2012

[8] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/504139/Independent_Freedom_of_Information_Commission_Report.pdf

[9] http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/public-administration-and-constitutional-affairs-committee/sourcing-public-services-lessons-to-be-learned-from-the-collapse-of-carillion/written/78257.html

[10] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705884/20180510_PSP2_Final_PDF.pdf

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