Extending FOI to contractors

A major loophole in the Freedom of Information Act means that it does not generally apply to contractors providing public services. Closing this loophole is a key campaign objective. A wide range of services may be provided by contractors from the provision of housing, health or social care, to public transport and the running of prisons. Contractor held information is only available where the contract makes clear that it is held on the public authority’s behalf. Where the contract is silent on the point the information will be outside the reach of the FOI Act.

The kind of information which has been withheld from the public as a result of this loophole includes information about the number of attacks at privately run prisons, whistleblowing policies of NHS contractors, incentives to issue parking tickets, the cost of TV licensing prosecutions and penalty fares on the London Overground.

In 2018 the Labour MP Andy Slaughter introduced a Private Member’s Bill drafted by the Campaign to close this loophole. The Freedom of Information (Extension) Bill would ensure that all information about the provision of public services under contract could be obtained via an FOI request to the authority concerned, subject to the Act’s exemptions.

This approach has been supported by:

  • The Information Commissioner’s office, in a January 2019 report to Parliament [1]
  • The Public Accounts Committee in reports published in 2011 and 2012 [2]
  • The Commission on Freedom of Information, set up by the government to review the Act, in its March 2016 report
  • The Open Government Network of 700 civil society organisations committed to improved transparency in government, which wrote to the Cabinet Office minister Matthew Hancock in support of the measure in March 2016
  • A petition by 38 Degrees which has been signed by almost 200,000 people

The Grenfell tower fire has highlighted the need for public access to information held by the providers of social housing. Housing associations, which own or run many former council estates, are completely outside the scope of the FOI Act. The bill would correct this serious omission.

It would also bring Local Safeguarding Children Boards, Electoral Registration Officers and Returning Officers under the Act.

The FOI Act permits contractors to be made subject to the Act in their own right. The Campaign believes this should also be done for for larger contracts and for contractors whose work is mainly with public authorities.

Notes:

[1] ‘Outsourcing Oversight? The case for reforming access to information law’ Report of the Information Commissioner to Parliament, 2019.

[2] “Freedom of information should be extended to private companies providing public services” [‘Lessons from PFI and Other Projects’, 4 4th report of session 2010-12, HC 1201, 18 July 2011] and “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” [‘Department for Work and Pensions: the Introduction of the Work Programme’, 85th report of session 2010-12, HC 1814, 15 May 2012].

[3] Commission on Freedom of Information report, pages 51-52

[4] Extend Freedom of Information to all public contractors: A proposal for the UK’s 2016-18 OGP National Action Plan

[5] https://speakout.38degrees.org.uk/campaigns/extend-foi

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