Tag Archive for private companies

Campaign calls for new FOI Bill

FOIMan reports on calls from FOI campaigners for a Bill to extend FOI to private companies that deliver public services.

House of Commons

House of Commons

This week MPs will learn if they have won the opportunity to put forward their own “Private Members Bill” for consideration by Parliament. The Campaign for Freedom of Information has written to them asking them to consider a new FOI (Contractor Information) Bill if they win one of the coveted places in the ballot taking place tomorrow (12 June).

There has been considerable controversy around the issue of whether FOI should apply to private companies. The Justice Select Committee concluded that it was not necessary and that contractual provisions could be used to ensure transparency of outsourced public services. However, Margaret Hodge MP, chair of the Commons’ Public Accounts Committee, has repeatedly called for FOI “to follow the public pound”. The Labour Party has committed to legislation to this effect should it win next year’s election. In March of this year, Simon Hughes, the Minister with responsibility for FOI, drew the line at such a move, but promised new guidance on contractors and FOI to improve transparency.

For its part, the Campaign has highlighted a number of cases where the status quo has resulted in information relating to public services being delivered by private contractors being withheld. These include:

  • the numbers of parking tickets issued, then cancelled on appeal, by traffic wardens employed by a council contractor and offered Argos points as incentives to issue tickets;
  •  the qualifications of assessors used to verify that incapacity benefit claims have been properly dealt with by the DWP’s contractor, Atos; and
  • the cost of providing Sky television to prisoners, and the number of cells with their own telephones, at HM Prison Dovegate, a privately managed prison.

Maurice Frankel, Director of the Campaign for Freedom of Information, says:

each new outsourcing contract reduces the public’s right to know. Information that is essential for accountability may be kept secret simply because the authority didn’t expect to need it and didn’t specify it in the contract. This bill would close a major loophole that is weakening the FOI Act day by day.

The Campaign was instrumental in making the case for FOI legislation in the UK and has subsequently proved a staunch defender of the right to know. If you’d like to support its work, please consider donating to it.


Third parties and FOI

Journalist David Higgerson highlighted a case yesterday where the Department for Transport (DfT) had refused a request for detailed information about overcrowding on trains. The exemption applied was s.43 of the FOI Act, which can be used to protect information which would, or would be likely to, prejudice commercial interests.

First off, let’s give credit where its due – DfT should be congratulated on their openness in publishing all their responses to FOI requests online routinely. This probably wouldn’t have come to light if they didn’t do that. Not many public bodies (not even my own) take that approach. And I’d also say that whilst it’s not perfect in its wording, generally speaking, the response is actually pretty detailed and helpful notwithstanding the decision not to disclose all of the information.

But David draws attention to a serious issue. The key reason given by DfT was that the Train Operating Companies (TOCs) had refused permission for details of passenger numbers to be disclosed. DfT are putting together a new dataset which relies on the cooperation of the TOCs, so they were concerned that if they disclosed such data, the TOCs might not help with the new project.

This highlights a key problem for public bodies answering FOI requests. All information we hold is subject to FOI, but not all of it was created by us. In my experience, one of the most common reasons why exemptions are even considered is to avoid offending third parties. And sometimes third parties can be pretty aggressive in making clear that they don’t want the information that they supplied to be disclosed. Often, they just have no understanding of what FOI means for public bodies, even though they are usually informed in advance about the possibility of disclosure, and we try to explain the situation again when requests come in.

Public authorities need to get better at standing up to third parties. In my experience, some are too inclined to just accept the third party’s view that information should be withheld. Government departments in my experience are particularly prone to this. We have to remember that it is our decision in the end, and not the third party’s.

If the Government is serious about openness, it really needs to tackle the attitudes of the organisations that it does business with, especially amongst those private companies that provide services to the public. If they can’t be made to co-operate, they should be at least threatened with being brought under the auspices of FOI. Then they’d understand the situation much more clearly.

The most powerful third parties even attempt (and sometimes succeed) to change the law to avoid their information being disclosed. A few years ago, MPs fed up with their correspondence to local authorities being disclosed in response to FOI requests tried to enact an amendment to the legislation to specifically exempt any correspondence from MPs. Oh, and while they were at it, they tried to sneak in an exemption for both Houses of Parliament. Eventually that proposal was defeated, but only because once it had passed the Commons, their Lordships were too embarrassed to support it any further.

Yesterday, by Statutory Order (following the passing of the Constitutional Reform and Governance Act by the last Government), the FOI Act was amended to strengthen the exemption for Communications with the Royal Household (s.37). From now on, public authorities will be able to (and will no doubt be leant on to) use an absolute exemption (ie with no public interest test) to withhold correspondence between the Monarch, the Heir and the second in line to the throne and themselves. So in future nobody will be able to find out if the Prince of Wales is seeking to influence planning decisions or the design of hospitals. This only came about, I suspect, because some public bodies felt that there was a public interest in disclosing such correspondence in the past, and pointed out that in this circumstance, they had to disclose the correspondence. That won’t have been happily received.

Some third parties can be very powerful indeed.