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Extending FOI to contractors

Freedom of Information (Contractors) Bill

The contracting out of public authority functions weakens the public’s rights to information. Any information which the public authority holds about a contract will be subject to FOI.  So will information which the contractor holds on the authority’s behalf. (This is usually information which the contract itself requires to be kept.) But other information about the contract or the contractor’s ability to perform will not be available. Internal discussion which reveals why a decision which affects the contracted service was taken will usually not be covered.

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, swimming pool closures and penalty fares on the London Overground.

The Campaign has published a Freedom of Information (Contractor) Bill 2016 which would close this loophole.  It 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 March 2015 report [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 Act permits contractors to be made subject to the Act in their own right. The Campaign believes this should be done, at least for larger contracts and for contractors whose work is mainly with public authorities.

Notes:

[1] Information Commissioner’s Office. ‘Transparency in Outsourcing: A Roadmap’, paras 51-55

[2] “Freedom of information should be extended to private companies providing public services” [‘Lessons from PFI and Other Projects’, 44th 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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