The Freedom of Information Commission published its report into the FOIA this week. The Commission has suggested that the FOIA should be extended to cover private companies delivering outsourced public services. We are awaiting the government's response to this proposal.

A copy of the report can be found here – see page 51.

The Commission received a significant number of responses that addressed the issue of whether the FOIA should be extended to private sector bodies delivering public services. However, because it did not formally ask for evidence on this issue it has not made a formal recommendation. Instead, it has expressed its opinion that the FOIA should be extended to the private/ third sector in some circumstances.

£5m threshold for FOIA to apply

The Commission concluded that extending FOIA to all private companies delivering outsourced public services would be "burdensome and unnecessary". However, any private company that is delivering public services under contract with a value at or greater than £5m per financial year should be covered. The total of £5m should relate either to a single contract, or the cumulative value of contracts with a single public authority within any one financial year.

Not all information held by a contractor would be caught

This would be achieved by treating performance and delivery information held by such contractors as being held by them on behalf of the public authority they are contracting with. That would mean that the information is accessible by making a request to the public authority – the private company itself would not become one of the bodies covered by the FOIA.

The advantage of this approach for the private sector is that it limits the information that would be caught by the FOIA. Only information relating to the delivery of the contract would be covered. However, there is a downside – it would be the public authority that made the final decision on what information to disclose under FOIA, not the contractor.

Only information about future contracts caught

The Commission reasoned that it would be unfair to apply any new rules to services that are delivered under contracts that have already been agreed. It suggested that the change should only apply to contracts signed after the necessary changes to the FOIA come in to force.

FOIA to apply to charities delivering public services

There has been some discussion, post the Kids Company debacle about whether charities should be subject to FOIA. The Commission was unpersuaded that the FOIA should be extended to all charities but charities providing public services under contract should be treated in the same way as other contractors.

The government's response

The government has not yet responded to the Commission's conclusions on this issue.

The Freedom of Information (Public Interest and Transparency) Bill 2015-16 is currently making its way through Parliament. The Bill has not yet been published but it includes a proposal to extend the FOIA to cover private companies. It is a private member's bill, which means it is unlikely to become law without government backing. It is possible that the government will use the Bill to implement the recommendations that it supports.