INFORMATION COMMISSIONER AND TRIBUNAL DECISIONS - NEXT FOI CASE LAW UPDATE 6TH JUNE 2024. RESERVE YOUR PLACE NOW!

Procurement Bill and FOI

The Procurement Bill, which reforms the UK’s public procurement regime following Brexit, has its second reading in the House of Lords on 25th May 2022. The Campaign has written to peers setting out why the Bill should extend the Freedom of Information Act to cover all information held by public sector contractors about their contracts with public authorities.

The bill’s disclosure provisions are very limited in comparison to what would be available under FOIA. Under the bill, authorities responsible for contracts over £2 million will be required to set and publish key performances indicators (KPIs) and assess performance against them annually [clause 50(1)]. Some information about the assessment (precisely what has not yet been specified) will also have to be published [clause 66(2)].  This may not be the full assessment: it could be no more than a yes/no indication of whether the KPIs have been met. An authority will not be required to produce more than 3 KPIs [clause 50(1)] and may not be required to produce any at all if it considers they would not allow appropriate assessment of the contract’s performance [clause 50(2)].

Although the duty to publish information about KPIs is a step forward, these will not cover much of the information that the public may seek about contract performance.  Moreover, a 12 month wait for such information may not satisfy the public need for information of immediate concern. This may relate to problems which may not have been anticipated when the KPIs were drawn up for example, about environmental, safety or fire incidents or concerns arising from the way in which the contract is being carried out.

We believe that FOIA should be extended to cover information held by public sector contractors about these contracts. At present the Act only allows access to such information if it is held on behalf of the authority. This normally applies only where the contract specifically entitles the authority to obtain particular information from the contractor. Where it does not, information held by the contractor is outside the scope of FOIA.  Information about the contract held by the authority itself is already subject to FOIA in the normal way,

Examples of information which has been requested in the past which has been held not to be subject to FOIA include:

Information about the number of referrals to the governors of Peterborough and Thameside prisons due to concerns about prisoners’ mental health or experience as victims of torture.  The prisons were run by contractors Sodexo and Serco respectively. The information was sought from the MOJ which refused it as not subject to FOIA as it was not held either by it or by the Probation Service controllers who liaised with the contractors about it.[1]

Information about an allegation that some Capita TV licence enforcement officers had deliberately targeted vulnerable individuals to maximise the bonuses they received for detecting unlicenced TV users.  Capita administer the TV licensing system under a contract with the BBC which instructed Capita to investigate the allegations. However, the BBC refused an FOI request for a copy of the completed report explaining that while Capita held it, it did not do so ‘on behalf’ of the BBC and the report was therefore not subject to FOIA.[2]

A report on potential fire safety defects at Hereford County Hospital, constructed and managed under a PFI scheme by Mercia Healthcare Ltd under an agreement with the NHS trust. The report was commissioned by Mercia Healthcare from the now defunct contractor Carillion which was still operating at the time. The request to the trust for it was refused, on the grounds that the report was not held by or on behalf of the trust.[3]

Nothing in the bill appears capable of assisting with such enquiries.

The extension of FOIA to cover information held by contractors about contracts with public authorities has been supported by the Information Commissioner[4], the Public Accounts Committee[5], the Public Administration and Constitutional Affairs Committee[6], the Justice Committee[7], the Committee on Standards in Public Life[8], the Independent Commission on Freedom of Information set up by the government to review the FOI Act in 2015[9] and the Institute for Government[10].

Many countries’ FOI laws already apply to such contractor-held information including those of Australia, Germany, Ireland, Italy, New Zealand, Pakistan, Poland, South Africa, Spain and Ukraine.

We believe that the UK FOIA should be extended to allow access to such information via a request to the public authority responsible for the contract. The existing FOIA exemptions protect information whose disclosure would prejudice commercial or other interests or be harmful in other ways.

The Procurement Bill provides the ideal vehicle for this reform.

For further information see our 2021 response to the Green Paper ‘Transforming Public Procurement’ which preceded the bill.

Notes:

[1] www.whatdotheyknow.com/request/531183/response/1273133/attach/3/Reply%20FOI%20181108024.pdf?cookie_pass through=1

[2] https://www.whatdotheyknow.com/request/404449/response/1018419/attach/2/IR2017047%20Response.pdf?cookie_passthro%20%20ugh=1

[3] First-tier Tribunal, Decision EA/2016/0125, Sid Ryan v Information Commissioner and Wye Valley NHS Trust, 7 April 2017

[4] Information Commissioner’s Office, Outsourcing Oversight? The case for reforming access to information law

[5] Public Accounts Committee, Lessons from PFI and Other Projects, 44th report of session 2010-12, HC 1201, 18 July 2011

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

[6] Public Administration and Constitutional Affairs Committee, After Carillion: Public sector outsourcing and contracting, Seventh Report of Session 2017–19, HC 748, 9 July 2018

[7] Justice Committee, Post-legislative scrutiny of the Freedom of Information Act 2000, 3 July 2012

[8] Committee on Standards in Public Life, The Continuing Importance of Ethical Standards for Public Service Providers, June 2014

[9] Independent Commission on Freedom of Information, Report, March 2016

[10] Institute for Government, Government outsourcing: what has worked and what needs reform?

Scroll to Top