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.
Proposals to avoid public misconduct hearings for nurses and midwives are part of a “pattern of moves to limit the public’s right to know about NHS safety problems”, says the Campaign for Freedom of Information.
The Campaign says that a new proposal by the Nursing and Midwifery Council (NMC) to do away with most public fitness to practise hearings echoes government proposals to keep evidence about safety incidents secret.
Under the NMC proposals, where a nurse or midwife admits to having made an error, the matter will be dealt with in private without the public hearing that now takes place . Reasons for any decision will be published, but there will apparently be no published transcript. “The risk is that failings at a hospital – or by the NMC itself – will be obscured, undermining public confidence in the NHS” the Campaign says.
The same philosophy underpins Department of Health proposals for a new body to investigate significant NHS safety incidents . The Health Service Safety Investigation Body would report on its investigations but be prohibited from revealing unpublished information in response to freedom of information (FOI) requests. The Department says this would allow staff to speak freely to investigators without fear of being unfairly blamed. But the Campaign’s director Maurice Frankel said: “the secrecy would not be limited to information provided by staff involved in safety incidents. It would apply to any information from any source obtained during an investigation, including information from the NHS trust itself, independent experts or a drug or medical device manufacturer. Even test results on equipment or anonymised accounts of previous incidents would be kept secret indefinitely.”
Only limited disclosures would be allowed, for example, to the police, regulatory bodies or other NHS bodies. Journalists or campaign groups would have to persuade the High Court to order disclosure of information which is currently available under FOI.
The Campaign says “the NMC proposals reflect the same disturbing philosophy: that patient safety is best served by addressing problems in private.”
 The new NMC strategy is set out in a draft consultation paper to be discussed by the NMC board on 28 March 2018
 ‘Draft Health Service Safety Investigations Bill’ published by the Department of Health in September 2017
The Campaign for Freedom of Information has drafted a bill which would bring both housing associations and private contractors providing public services under the Freedom of Information Act.
Housing associations are not subject to the FOI Act and can refuse to answer requests about fire risks, safety problems, eviction policies, waiting lists and other matters.
A draft Bill set out in today’s Queen’s Speech will lead to an unnecessary layer of secrecy about investigations into patient deaths and injuries, says the Campaign for Freedom of Information.
The draft Patient Safety Bill will put the work of the newly formed Healthcare Safety Investigation Branch (HSIB), which investigates selected NHS safety incidents, on a statutory basis. The HSIB will be required to publish reports of its investigations, but will be prohibited by law from revealing any other information obtained during its investigations. FOI requests for such information will automatically be refused.
New proposals by the Law Commission to reform the 1989 Official Secrets Act (OSA) could lead to the imprisonment of civil servants and journalists for disclosing information that would be available to anyone asking for it under the Freedom of Information Act, say the Campaign for Freedom of Information (CFOI) and ARTICLE 19.
The Law Commission is proposing to make it easier to secure convictions under the 1989 OSA by weakening the test for proving an offence. But the proposed weaker test would catch information that would have to be disclosed under the Freedom of Information (FOI) Act, say the CFOI and ARTICLE 19.
In a joint response to the Law Commission proposals, ARTICLE 19 and the CFOI are concerned that:
- Whistleblowers and journalists could be convicted for revealing information about defence, international relations or law enforcement that is unlikely to cause harm
- Leaking information that anyone could obtain by making an FOI request could be an offence
- It would not be a defence to show that the information had already lawfully been made public under the FOI Act or otherwise – unless the information had also been ‘widely disseminated’
- Someone revealing danger to the public, abuse of power or serious misconduct would not be able to argue that they acted in the public interest
- Maximum prison sentences on conviction, currently 2 years, would be increased.
The Government has just stated that it is “carefully considering” a recommendation made by the Commission on Freedom of Information in March 2016 that the right to appeal to the First-tier Tribunal (FTT) against the Information Commissioner’s decisions should be abolished. When the Commission’s report was published the Government gave an assurance there would be “no legal changes” to the FOI Act. Abolishing the FTT would require such legislative changes. The FTT is a vital safeguard against poor decisions from the Information Commissioner. In 2014, some 20% of requester appeals to the FTT were wholly or partly successful. The Campaign believes that depriving requesters of this right of appeal would seriously weaken the public’s right to know.
The Justice Committee’s report on Courts and Tribunal Fees has endorsed the proposal, made by the Independent Commission on Freedom of Information that the right of appeal to the First-tier Tribunal (FTT) under the Freedom of Information Act should be abolished. The Committee does not appear to have examined the case for this change itself. It simply reported that it saw no reason to disagree with the Commission’s view. The Campaign believes that if the proposal went ahead, it would significantly undermine the operation of the Act.
Today’s report from the Commission on Freedom of Information does not call for the severe restrictions that had initially seemed likely, according to the Campaign for Freedom of Information. The report sets out a mixture of proposals, many of which would enhance the FOI Act. However the Campaign says a proposal to remove the right of appeal against the Information Commissioner’s (IC’s) decisions to a specialist tribunal would undermine the Act’s enforcement system.
A statement issued last night by the Cabinet Office minister responsible for FOI, Matt Hancock, said the government “will not make any legal changes” to the FOI Act. The Campaign said this suggested that the Act would not be weakened.
The Campaign’s director Maurice Frankel said: “The Commission has stepped back from the one sided agenda which the government initially appeared to set for it, of restricting access to internal policy discussions, introducing charges for requests and making it easier for authorities to refuse requests. Instead it has also looked at the case for improving the legislation. The government itself has clearly been scalded by the criticism it has received from the press and public and made it clear it’s not prepared to take its initial agenda forward. We now need to ensure that the Act is extended to contractors providing public services and bodies like the National Crime Agency which have been deliberately excluded.”
Information about prison attacks, penalty fares on London Overground, whistleblowing policies in the NHS and parking tickets has all been withheld under the Freedom of Information (FOI) Act because this information was held by public authority contractors and not by the authorities themselves.
The Campaign for Freedom of Information is calling for the FOI Act to be extended to such information. It cites 10 examples of information about public services which has been withheld because of a loophole in the Act.
The Commission on Freedom of Information
and the future of the FOI Act
2.30 pm Monday 30 November 2015
House of Commons, Committee Room 9
Tom Watson MP, Deputy Leader of the Opposition
The Rt Hon David Davis MP, Conservative, Haltemprice and Howden
Lord Tyler, Lib Dem, Constitutional & Political Reform Spokesperson