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Lords to debate FOI amendment to Procurement Bill

The Campaign for Freedom of Information has drafted an amendment to the Procurement Bill to make information held by public sector contractors subject to the Freedom of Information Act (FOIA). The amendment has been tabled by Lord Berkeley (Labour) supported by Lord Clement-Jones (Lib Dem).  It will be debated by peers during the Bill’s committee stage in the House of Lords, which is currently underway.

The Freedom of Information Act (FOIA) 2000 applies to information about a contract held by a public authority but not normally to information held by the contractor. The same is true of the parallel Environmental Information Regulations 2004 (EIR). Information held by the contractor is only available if the information is held on behalf of the public authority. [1] This normally only applies where the contract expressly requires the contractor to provide the information to the authority, either routinely or on demand. As a result, public access to information about public sector contracts varies from contract to contract, depending on their precise terms and on the willingness of the parties to adopt measures permitting greater public access.

Contracts typically require the contractor to provide specified information to the authority about the progress of the contract. However, the public often needs information about problems not anticipated at the contract stage or which was not thought necessary to monitor the contract’s performance.

The Procurement Bill provides for only limited disclosure of information to the public about the actual performance of a contract. An annual assessment of performance against key performance indicators (KPIs) will be required for contracts valued at over £2 million [clause 66(2)]. An authority will not be required to publish more than 3 KPIs [clause 50(1)] and may not be required to publish any at all if it considers they would not allow the appropriate assessment of the contract’s performance [clause 50(2)]. The actual information to be published about compliance with KPIs will be left to regulations [clause 86]. This could turn out to be a simple yes/no statement of whether the relevant KPI has been met. In any event, a 12-month wait for an annual publication is unlikely to satisfy the needs of those concerned about an existing problem.

Lord Berkeley’s and Lord Clement-Jones’ amendment 449A provides that all information relating to a contract with a public authority, held by the contractor or a sub-contractor, will be subject to FOIA/EIR. This follows the approach of many countries’ FOI laws, including those of Australia, Germany, Ireland, Italy, New Zealand, Pakistan, Poland, South Africa, Spain and Ukraine.

For example, section 2(5) of New Zealand’s Official Information Act 1982, states:

“Any information held by an independent contractor engaged by any department or Minister of the Crown or organisation in his capacity as such contractor shall, for the purposes of this Act, be deemed to be held by the department or Minister of the Crown or organisation.”

The amendment would make this the position under the UK’s FOIA/EIR. The amendment would ensure that any information held by a contractor in connection with a public authority contract would be deemed to be held on behalf of the authority and thus be subject to FOIA/EIR, via a request to the public authority concerned. The public’s rights to such information would no longer depend on the precise terms of each contract.

FOIA itself provides a route for designating contractors as public authorities in their own right so that requests can be made to them directly. Under section 5(1) of FOIA the Secretary of State can designate as a public authority any person who appears to ‘exercise functions of a public nature’ or who ‘is providing under a contract made with a public authority any service whose provision is a function of that authority.’ 

However, not all contracts involve the authority’s functions. A ‘function’ will typically involve something which the authority has a specific statutory power or duty to do but will not apply to something which both public and private bodies may need or choose to do. A contract under which the contractor assists an authority to restructure itself, dispose of its property, reduce its costs, select staff for redundancy, assess safety or environmental risks from its activities, comply with statutory requirements or protect or maintain its premises would not involve the provision of a service which is a function of the authority. For this reason, the amendment is not limited to such contracts.

The amendment also gives the Information Commissioner the power to obtain information from a contractor/sub-contractor or others holding information on an authority’s behalf for the purposes of an investigation. This could be done by the issue of an information notice on the contractor/subcontractor under section 51 of FOIA or to obtain a warrant to enter premises under section 55 and Schedule 3 of FOIA. The provisions would also apply to EIR requests.

The amendment also extends to contractors/subcontractors the offence of deliberately destroying or altering requested information in order to prevent disclosure. The offence, in section 77 of FOIA, also applies to both FOIA and EIR requests.

The provision will not mean that information held by a contractor will always be released. This will depend on the FOIA/EIR exemptions. The FOIA exemptions protect information whose disclosure would prejudice any person’s commercial interests, including the authority’s and the contractor’s or be a breach of confidence. Other exemptions include those for disclosures which would prejudice defence, international relations, law enforcement, criminal proceedings, the authority’s functions, the formulation of government policy, the frankness of advice, a programme of research, the effective conduct of public affairs or which would breach legal professional privilege or data protection requirements. Many exemptions permit disclosure where it is in the public interest. Requests may also be refused if answering them would be too costly or if the request is vexatious.

Other amendments to improve FOI access to procurement information have also been tabled. Amendment 448 in names of Lib Dem frontbench peers Lord Wallace of Saltaire and Lord Fox would require the minister to designate all contractors exercising functions of a public nature as public authorities under FOIA. Exceptions could be made where the value of their contracts are less than certain thresholds, depending on the type of contract and starting at just over £213,000. These contractors would then be required to answer FOI request made directly to them.

Amendment 449 tabled by Labour peer Lord Hunt of Kings Heath contains a number of elements, one of which would ensure that the FOIA exemption for prejudice to commercial interests could not apply to requests for information about public contracts.

Note

[1]  Such information is treated as held by the authority itself. Section 3(2)(b) of FOIA states: “For the purposes of this Act, information is held by a public authority if…it is held by another person on behalf of the authority.” The equivalent provision is found in Regulation 3(2)(b) of the EIR.

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