Outsourcing of public functions: could Freedom of Information laws apply to you?

The Information Commissioner has, in a report to Parliament, recommended extending the access to information regimes under the Freedom of Information Act 2000 (FOIA) and Environmental Information Regulations 2004 (EIR) to a range of entities to whom these currently do not apply: private companies including social enterprises, charities, housing associations, self-regulatory bodies and so on!

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Public
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Update

This is based on her view that the current law does not provide effective transparency and accountability in the context of modern public services and the world of ‘outsourcing’. Many entities that have thought of themselves as outside of the public access to information regimes even if already operating in a transparent and accountable way, may need, in the future to gear up to this being a matter of law, which individuals, campaigners and of course, journalists can enforce.

Some have called the current situation a democratic deficit. Hence two catalysts for the report are said to be the collapse of Carillion, which held over 400 public sector contracts, and the Grenfell Tower disaster, which highlighted difficulties in accessing information relating to social housing (Kensington and Chelsea Tenant Management Organisation was established by the local authority to manage and maintain its housing stock, and is not subject to FOIA).

The Information Commissioner has two central recommendations. First, the Secretary of State should more frequently exercise his/ her power to designate organisations as subject to FOIA where they appear to exercise functions of a public nature, or carry out public functions under contract with a public authority.

Second, the report recommends a number of legislative reforms. To improve consistency across the FOIA and EIR regimes, the Information Commissioner suggests that designated bodies should also be caught by the EIR. Further, FOIA and EIR should be amended to make it clearer when information held by contractors is held on behalf of public authorities (and therefore potentially accessible by the public).

This is not the first time that recommendations to extend FOIA have been made (notably the Burns Commission in 2016 suggested information concerning the performance or delivery of public services under contract(s) worth £5m+ a year should be treated as being held on behalf of the contracting public authority – see BWB’s summary here (page 12)). As with many proposals for legislative reform, whether this will make progress is likely to be a question of Government priorities at a time when Parliament is under immense pressure. The recommendation that the designation power should be used more frequently is more modest, though it remains to be seen whether there is any political appetite in relation to this proposal.

Should these recommendations be accepted, it could affect organisations exercising public functions (such as self-regulatory bodies) and organisations carrying out public functions on behalf of public authorities under contract (including many charities and social enterprises). For the latter, this report may serve as a useful reminder to check what contracts say about what information is held on behalf of the public authority (and therefore is subject to FOIA). Both types of organisation will wish to follow developments relating to the Commissioner’s proposals. Should the Government decide to exercise its power to designate new organisations as subject to FOIA, those bodies can expect to be consulted first.

Whether or not this would be suitable for your organisation is something that will need careful thought: if unwelcome and to be pushed back successfully, a response to Government will be needed that indicates how transparency and accountability in the use of public funds is already being met; if you know you are already on the Government’s radar for designation, and this is a welcome direction of travel, it can be a good idea to start putting in place a shadow, voluntary system of disclosure as if FOIA/EIR already applies.

The report forms part of the ICO’s draft strategy on information access, on which the ICO is consulting (consultation closes 8 March 2019).

If you would like to discuss any of the above, do please contact Melanie Carter, partner at Bates Wells.


All content on this page is correct as of February 15, 2019.